Su v. Plaza del Sol

Filed 4/6/07 Su v. Plaza del Sol CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CROSS-APPEALS from a judgment of the Superior Court of San Diego County, William C. Pate, Judge. Affirmed in part, reversed in part and remanded with directions.

Kyung-Ja Su filed this wrongful death action against Plaza del Sol, LLC (Plaza del Sol), Value Investments, Inc. and Victor Liong (collectively with Plaza del Sol, the Defendants) after her husband was killed in a shooting at the Defendants' shopping center, where she and her husband operated their business. The Defendants cross-claimed against Mrs. Su for express indemnity pursuant to her lease agreement with them and for declaratory relief, although their cross-claims were later dismissed by the court. At trial a jury found in Mrs. Su's favor and the trial court thereafter granted Mrs. Su's request to recover her attorney fees incurred in defending against the cross-complaint pursuant to an attorney fee provision in the lease agreement, but denied her request for fees incurred in pursuing the complaint.

Plaza del Sol and Mrs. Su both appeal the resulting judgment. Plaza del Sol contends that, as a matter of law, it had no duty to undertake security measures to protect shopping center tenants and patrons from a drive-by shooting and that there was no substantial evidence to support the jury's finding of causation. Mrs. Su contends that the superior court erred in denying her request for attorney fees incurred in prosecuting her complaint.

We find Plaza del Sol's arguments unavailing and affirm the judgment in favor of Mrs. Su. We conclude, however, that the superior court erred in denying Mrs. Su's request to recover her attorney fees incurred in prosecuting her complaint and reverse the judgment in that respect.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2002, Mrs. Su purchased the Han Kook Billiards Parlor (the Pool Hall), which is located at the Plaza del Sol Shopping Center (the Shopping Center) in Kearny Mesa, and began operating it with her husband, Don. Late in the evening of June 14, 2002, two unknown assailants in a car in the alley that runs behind the Shopping Center fired shots into the breezeway that crossed in front of the entrance to the Pool Hall. The shots injured two members of the Tiny Rascal Gang who were waiting in front of the Pool Hall entrance for a table to become available. Another shot, which ultimately proved fatal, hit Mr. Su in the neck as he was returning to the hall with a friend. The police investigated the incident as a gang shooting, but were unable to determine the identities of the perpetrators.

In May 2003, Mrs. Su filed this action against the Defendants for wrongful death. The Defendants moved for summary judgment on the ground that, although there had been prior gun-related and other criminal incidents at the premises, those incidents were not sufficiently similar in nature to the current shooting so as to render the shooting foreseeable or to give rise to a duty by them to provide more lighting and security at the property. The superior court denied the motion and the Defendants thereafter cross-claimed against Mrs. Su for express indemnity and declaratory relief; however, the superior court granted a motion by Mrs. Su for judgment on the pleadings and dismissed the cross-complaint prior to trial.

At trial, Mrs. Su introduced evidence of the following:

Since 2000, there had been an increasing problem with gang activity and Asian teenagers loitering, drinking, smoking and playing loud music in the Shopping Center alley at night. Byung Koo Lee, who owned the Pool Hall from April 1999 until he sold it to Mrs. Su in March 2002, noticed these problems and called the police a few times to try to remedy the situation; the occasional police patrols helped, but did not alleviate the problem, and twice the tires of his car were slashed after he had called to request a patrol.

In early 2001, there was a stabbing near the Pool Hall and, on a subsequent occasion, shots were fired between two vehicles in the area of the Shopping Center parking lot close to the Pool Hall at approximately 11:30 p.m. In November or December of 2001, a Plaza del Sol tenant called the police after a large group of Asian teens began chasing each other with baseball bats and sticks in the Shopping Center parking lot. In the late evening hours of January 4, 2002, a gang member standing in the breezeway fired shots through a glass front door of the Pool Hall; two of the shots hit a patron standing inside. Late the next night, numerous shots were fired from the parking lot toward the Pool Hall. Four days later, the police made a drug dealing arrest at the Pool Hall.

Thereafter Lee spoke to Liong about a number of these incidents, another incident involving a fight and the gang problem at the Shopping Center generally, which Liong acknowledged. On that occasion and several others, Lee requested that the Defendants install lights in the alley and replace a chain across the breezeway with a gate that could be closed at night to discourage young people from loitering there. Despite Lee's complaints about the existing lighting and the fact that many of the prior incidents of violence occurred at night, Liong never assessed the lighting conditions or considered whether more lighting was required because he felt that the requested changes were neither practical nor necessary.

In late February 2002, the police department's drug abatement unit sent the Defendants a letter informing them that they were legally responsible for ensuring that drugs were not sold on the property. Liong responded with a letter of his own in which he reported that the Pool Hall had been the site of gang activity in the past and that, despite his efforts to work with the owner (Lee) to control the "escalating problem," Hmong and Vietnamese gang members, many of whom were not patrons of the Pool Hall, nonetheless loitered in the alley behind it. He requested additional police patrols and indicated that "[s]hort of closing the [Pool Hall], . . . there is not much more we can think to do." The police department's street gang unit provided assessment and recommendation services to property owners and tenants who experienced problems with gangs and in fact did an assessment of the Pool Hall at Lee's request; although Lee gave Liong the name of a police officer to talk to about the gang problem, Liong did not make that contact or request an assessment for the property.

After Mrs. Su bought the Pool Hall, the Sus noticed that incidents of fighting frequently occurred at the Shopping Center at night, although they did not specifically complain to Liong about this. On the night that Mr. Su was shot, a number of the existing lights outside the Pool Hall were not working, despite prior requests that the lights be fixed, and the alley and the breezeway were "dimly lit."

San Diego Police Sergeant Douglas Collier, who worked for the San Diego Police Department's street gang unit at the time of the shooting, testified at trial that lighting and denial of access to parking in an alley would provide effective tools in attempting to deter gang members from congregating there at night. Collier also testified that a video of the alley and the breezeway at Plaza del Sol taken at night shortly after the fatal shooting showed that those areas were not well lit and provided places where gang members could congregate without being seen from the street and from which they could easily leave if a police patrol car entered the Shopping Center parking lot. Mrs. Su's expert also testified that the existing lighting was inadequate, that the Defendants breached their duty of care by failing to recognize and develop an action plan to address the loitering, drug and lighting issues at the property and that if they had installed adequate lighting, controlled access to the alley at night and installed a gate across the breezeway, the shooting would not have occurred.

After Mrs. Su finished presenting her case, the Defendants moved for a nonsuit on the issues of duty and causation. The court denied the nonsuit motion, finding that there was sufficient evidence to support a jury in finding that preventive measures (particularly the installation of a gate across the breezeway) might have prevented Mr. Su's death. At some point, Plaza del Sol apparently also moved to have the court dismiss Mrs. Su's claims against it pursuant to an indemnity provision in its lease with her, although the court did not rule on the motion at that time.

Thereafter, the Defendants called security expert John Case, who testified that without knowing the identity of the shooter, his or her mental state, the motive for the shooting and other factors, there was no basis for concluding whether the preventive measures would have prevented the shooting. On cross-examination, Case conceded that the alley was "dimly lit" at night and that, had he been consulted after the first January 2002 shooting, he would have recommended improving the lighting to deter crime generally, although he also opined that the improved lighting would have been less likely to deter criminal activity by gangs. Case also admitted that a property owner or a property manager should respond if a tenant is having problems with gang members congregating, playing loud music, drinking and smoking marijuana at its premises.

The jury returned a verdict in favor of Mrs. Su, specifically finding that the Defendants' negligence was a substantial factor in causing Mr. Su's death; it awarded her economic damages of $815,971 and non-economic damages of $1.5 million and allocated fault for his death as follows: 34 percent to Plaza del Sol, 5 percent each to Liong and Value Investment Properties, Inc., and 56 percent to unspecified others. Thereafter, the court held a hearing on a renewed motion by Plaza del Sol's to dismiss Mrs. Su's claims against it pursuant to a waiver of claims provision in the lease; the court denied the motion on the grounds that the lease provision was inapplicable and, even if otherwise applicable, it was unenforceable.

The court also entertained a motion by Mrs. Su's for attorney fees, awarding her $32,388.50 in attorney fees incurred in defending against the Defendants' cross-complaint, but denying her request for $491,341.65 in fees incurred in prosecuting the complaint. It entered judgment in Mrs. Su's favor in January 2005. Thereafter, Liong and Value Investment Properties, Inc. settled with Mrs. Su and received a satisfaction of judgment. Plaza del Sol appeals the judgment against it and Mrs. Su appeals the partial denial of her request for attorney fees.

DISCUSSION

1. Liability for Wrongful Death

To prevail in an action for negligence, a plaintiff must plead and prove the following essential elements: (1) defendant's legal duty of care; (2) defendant's breach of duty (i.e., the negligent act or omission); (3) the breach was a proximate or legal cause of her injury (i.e., causation); and (4) damages. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.); 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading,  537, p. 624.) Plaza del Sol's challenges relate to the existence of a duty and causation.

A. Duty

"California law requires landowners to maintain land in their possession and control in a reasonably safe condition. [Citations.] In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." (Ann M., supra, 6 Cal.4th at p. 674.) The duty requires in part that the landlord exercise reasonable care to discover criminal acts that are being or are likely to be committed on its land. (Id. at pp. 679-680.) However, a landlord's duty to take affirmative action to control the wrongful acts of third parties arises only where such wrongful acts can be "reasonably anticipated." (Id. at p. 676.)

The determination of whether a duty exists is an issue of law and, in a case where the question is whether the landlord had a duty of care to protect against third party criminal conduct, the court must balance the foreseeability of the harm against the burden of the duty to be imposed. (Ann M., supra, 6 Cal.4th at pp. 674, 678.) Where the burden necessary to prevent future harm is substantial, a higher degree of foreseeability is required to support the existence of a duty, whereas if strong policy reasons support preventing the harm, or the burden of preventing the harm is not great, a lesser degree of foreseeability is required. (Id. at p. 678; see also Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243 (Delgado).)

Applying these principles, the California Supreme Court held in Ann M. that the owner of a shopping center had no duty to hire security guards merely based on a showing by the victim, an employee of a tenant who was raped at work during business hours by an unknown assailant, that there had been prior assaults and robberies at the premises. (Ann. M., supra, 6 Cal.4th at pp. 670-671.) The high court reasoned that the prior incidents were dissimilar in nature from the violent assault the victim suffered and that her evidence regarding the presence of transients and the statistical crime rate of the surrounding area were not substantial enough to establish the high degree of foreseeability necessary to impose a duty on the landlord to provide security guards in the common areas. (Id. at pp. 679-680.)

Similarly, in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181 (Sharon P.), disapproved on other grounds by Agular v. Atlantic Richfield Co. (2001) 24 Cal.4th 826, 853, footnote 19, the Supreme Court held that a violent third party sexual assault in a commercial underground parking garage was not sufficiently foreseeable to impose a duty on the garage owner to hire a security guard. Although the plaintiff established that a bank on the ground floor of the office building above the garage had been robbed on multiple occasions in the two years prior to the sexual assault, the court held that the robberies were not sufficiently similar to the sexual assault crime to establish a high degree of foreseeability, particularly in light of the evidence that there had been no assaults in the underground garage in the 10 years preceding the attack on the plaintiff. (Id. at pp. 1185-1186, 1191, 1195.) The court also rejected the plaintiff's argument that the defendants had violated a duty to keep the garage brightly lit, to activate and monitor a security camera previously installed over the garage elevator and to require existing personnel to periodically walk through the garage because "absent any prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location," the defendants were not required to secure the area against such crime. (Sharon P., supra, 21 Cal.4th at pp. 1196, 1199.)

The Supreme Court recently revisited the issue of a proprietor's duty to protect business invitees against third-party criminal acts in Delgado, supra, 36 Cal.4th at pages 236-250. There, a bar security guard asked the victim to leave the premises after being made aware that the victim had been exchanging hostile stares with a group of other men who were also patronizing the bar. The high court concluded that, in light of the bar's knowledge of circumstances suggesting that a fight was likely to occur between the victim and the group of men, the bar had a duty to undertake "minimally burdensome measures," such as trying to dissuade the group from leaving the bar after the victim went out to the parking lot and ensuring that the parking lot security guard was at his post. (Id. at p. 246.) The court's opinion acknowledged, however, that a duty to implement preventive measures (including the hiring of a security guard) was not necessarily limited to situations where the same type of criminal incidents had occurred on the property, but might also arise where the plaintiff's evidence substantiated "other indications of a reasonably foreseeable risk of violent criminal assaults," such as similar violent crime occurring on the premises of a nearby and substantially similar business establishment. (Delgado, supra, 36 Cal.4th at p. 240.)

We must assess Plaza del Sol's argument that it owed no duty of care to patrons and tenants to minimize gang-related violence at the Shopping Center in the evenings pursuant to the foregoing precedents. We begin our analysis with a consideration of the specific measures that Mrs. Su contends the Defendants should have undertaken to prevent the type of harm that occurred and the burden of implementing such measures. Those security measures consisted of fixing the existing lights, installing additional lighting in the alley and gating the alley and the breezeway so that they could be closed at night, all relatively inexpensive, one-time expenditures. Plaza del Sol's lease agreement with its tenants allowed it to pass along the costs of these security measures to the 30 tenants of the Shopping Center, to be shared among them, further minimizing the financial burden of implementing those measures. (See generally Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 958.)

Because the burden of undertaking such measures is much less onerous than the burden of hiring a security guard to patrol the premises on an on-going basis, Mrs. Su is not required to establish a heightened degree of foreseeability to justify the imposition of a duty to implement them. (Ann M., supra, 6 Cal.4th at p. 679.) On the issue of the foreseeability of a shooting at the Shopping Center, the evidence produced by Mrs. Su showed that there were escalating problems with teenagers and gang members congregating at the Shopping Center at night and that numerous incidents of violence (three of which involved multiple shots fired at people or occupied vehicles) occurred at night in the 18 months preceding the fatal shooting of Mr. Su. Mrs. Su also presented evidence that Lee had complained about these problems, which Liong generally acknowledged to Lee and in his letter to the police, and specifically requested that the Defendants implement the same security measures Mrs. Su contends they had a duty to undertake, to reduce the risk of injury.

Plaza del Sol nonetheless contends that the shooting, which it characterizes as a drive-by shooting, was simply not foreseeable. (See Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 52-53].) However, the question is not whether the specific shooting in question was foreseeable, but rather whether the "particular kind of harm" was a foreseeable risk of Plaza del Sol's failure to take steps to protect its tenants and their patrons. (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 519; Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6.) (For this reason, Plaza del Sol's argument that the absence of any evidence that gang members or teenagers were congregated in the alley or the breezeway at the time of the fatal shooting precludes foreseeability is unavailing.)

In light of the escalating problems with gang activity and teens congregating at the Shopping Center at night and the recent series of violent incidents (most of which occurred in the vicinity of the Pool Hall or the parking lot area closest to it), the possibility of another shooting was sufficiently foreseeable so as to require Plaza del Sol to assess its property and undertake reasonable security measures to discourage or prevent these groups from congregating there. (Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 333 [in light of evidence of a prior robbery in the lobby of its apartment building, the landlord was liable to the victim tenant who was raped in a common area hallway in the building as the result of its failure to undertake the minimal burden of fixing a lock on building's lobby door]; see generally Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 486 [recognizing that "the congregation of gangs poses a foreseeable risk of harm to the public"]; Gomez v. Ticor (1983) 145 Cal.App.3d 622, 632-633, disapproved on other grounds by Sharon P., supra, 21 Cal.4th at p. 1193 [owner of a parking garage was liable for the death of a patron who was murdered when he interrupted a robbery in progress there in light of the history of theft and vandalism in the garage and the foreseeability that a patron might encounter someone perpetrating such a crime and be subjected to a violent attack].) This is particularly true given that only Plaza del Sol could have implemented the security measures Lee had requested and Mrs. Su now contends should have been put into place. (See Kline v. 1500 Massachusetts Avenue Apartment Corp. (D.C.Cir. 1970) 439 F.2d 477, 481.) For these reasons, we reject Plaza del Sol's contention that the evidence was insufficient to establish that it had a duty of care.

B. Causation

To demonstrate causation, a plaintiff must show "that the defendant's act or omission was a 'substantial factor' in bringing about the injury." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774 (Saelzler).) "[The] actor's negligent conduct is not a substantial factor in bringing about harm . . . if the harm would have been sustained even if the actor had not been negligent." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240, italics omitted.) Thus, a plaintiff's evidence must show that it was "more probable than not" that additional security precautions would have prevented the attack in question. (Saelzer, supra, 25 Cal.4th at p. 776.) Further, absent additional evidence of causation, an expert's bare opinion that better security measures would have prevented the incident is speculative and will not suffice to make the requisite showing. (Id. at p. 777.)

In this case, there was sufficient evidence to support the jury's finding of causation. The evidence at trial was essentially uncontroverted that (1) gang members and teenagers were congregating, drinking and using drugs in the area around the Pool Hall (particularly in the alley and the breezeway) at night, (2) that area was inadequately lit and (3) better lighting would have provided a deterrent to the conduct that was causing the problems and the violence. Liong testified that although he had not felt responsible for addressing the problem at the time Lee complained to him, he changed his mind about that by the time of trial, and the Defendants' own expert essentially admitted that the Defendants should have responded to tenants' complaints about the young people's illicit activities at the premises in the evenings.

This evidence, which consisted of much more than just a bare expert opinion, provided an ample basis from which the jury could reasonably find it more probable than not that if Plaza del Sol had installed additional lighting, maintained the existing lights in working order and used a gate to close off the breezeway from the alley at night, the shooting of Mr. Su would not have occurred.

2. Attorney Fees

Although a party who prevails in a civil action is entitled to recover its costs as a matter of right unless otherwise provided by statute (Code Civ. Proc.,  1032, subd. (b); see Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 104), California law generally requires that a party to a lawsuit pay its own attorney fees, regardless of whether it prevailed in the action. (Code Civ. Proc.,  1021; Trope v. Katz (1995) 11 Cal.4th 274, 278-279.) A well-established exception to this general rule exists where a contract, statute or other law specifically authorizes the prevailing party to recover attorney fees. (Code Civ. Proc.,  1021, 1033.5, subd. (a)(10); see also Santisas v. Goodin (1998) 17 Cal.4th 599, 606.)

Where, as here, a contract between the parties authorizes the recovery of attorney fees, the court must determine whether the prevailing party is entitled to fees in accordance with the contract terms. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) On appeal, we review de novo the legal basis underlying a decision to grant or deny attorney fees. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1511.)

The ordinary rules of contract interpretation determine whether the attorney fee provision authorizes the recovery of attorney fees in a tort action. (See Santisas v. Goodin, supra, 17 Cal.4th at p. 608.) Under these rules, the mutual objective intention of the parties at the time of contracting govern (Civ. Code,  1636), which intent is to be inferred, if possible, solely from the written provisions of the contract. (Civ. Code,  1639.) Absent evidence that the parties applied some special meaning to the terms used (Civ. Code,  1644), the "clear and explicit" meaning of those terms, as interpreted in their "ordinary and popular sense," controls judicial interpretation. (Civ. Code,  1638.) If the meaning a layperson would ascribe to contract language is unambiguous, we apply that meaning. (See, e.g., Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807.) Thus a broadly worded contractual attorney fee provision may support an award of attorney fees to the prevailing party even in an action alleging only tort claims. (Xuereb v. Marcus & Millichap (1992) 3 Cal.App.4th 1338, 1341 ["parties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract"]; Malibou Lake Mountain Club, Ltd. v. Smith (1971) 18 Cal.App.3d 31, 35-36.)

Here, the lease agreement between Plaza del Sol and Mrs. Su provided in relevant part that "[i]n the event of any legal action or proceeding between the parties, the ultimately prevailing party shall be entitled to reasonable attorneys' fees and expenses as part of the judgment." (Italics added.) On its face, the language of the attorney fee provision reflects an intention that the prevailing party in any action between the contracting parties is entitled to recover fees, without regard to whether the action was one sounding in contract or in tort and without regard to whether the action arose out of the lease agreement.

Plaza del Sol essentially admits that the contract language is adequately broad to permit an award of attorney fees in a tort action such as this one, but nonetheless argues that the language (which it drafted) cannot be interpreted literally because such an interpretation would lead to absurd results. This argument is problematic, however, for a number of reasons. First, although Plaza del Sol now suggests a number of scenarios in which the literal application of the lease language would be absurd, the question here is whether such an application leads to an absurd result under the facts presented. Second, Plaza del Sol itself asserted a right to recover attorney fees pursuant to the lease agreement in its answer, providing evidence that in fact the parties intended for the attorney fee provision to have precisely the broad effect that the language suggests. (See Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 [recognizing that the parties' subsequent conduct provides extrinsic evidence as to their objective intent]; Western Medical Enterprises, Inc. v. Albers (1985) 166 Cal.App.3d 383, 391 ["the acts of the parties to a contract afford one of the most reliable means of arriving at their intention"].) (The relevance of this fact as evidence of the parties' intent does not involve the application of judicial estoppel principles.)

Moreover, although Plaza del Sol correctly points out that the fatal shooting did not arise out of the lease relationship, the fact is that pursuant to the terms of its leases, Plaza del Sol was obligated to its tenants to maintain the common areas of the Shopping Center so that those areas were properly lit, clean and orderly and that it "police" those areas. Further, Plaza del Sol relied on various provisions of the lease to defend itself throughout the litigation, including in its answer (which asserted in part that its failure to perform its obligations and Mrs. Su's injuries resulted from Mrs. Su's breach of the lease agreement and that her claims were barred or waived by the lease provisions) and as a basis for its dismissal motion after trial. Evidence of certain of the lease provisions was introduced at trial and Mrs. Su argued to the jury that Plaza del Sol's duty to maintain the common areas arose from the lease as well as common law.

Under these circumstances (most particularly the broad language of the attorney fee provision, the existence of extrinsic evidence supporting the inference that the language reflected the parties' objective intentions and the absence of any contrary extrinsic evidence), we conclude that the superior court erred in denying Mrs. Su's request for attorney fees incurred in prosecuting her complaint against Plaza del Sol and reverse its order so providing. (We recognize that an award of attorney fees to a plaintiff in a wrongful death action is highly unusual and emphasize that we reach this conclusion only on the very unique circumstances presented here.) Because the court did not rule on Plaza del Sol's alternative challenge to the reasonableness of the fees Mrs. Su requested, we remand the matter for further proceedings.

DISPOSITION

The judgment is reversed insofar as it denies Mrs. Su's request for attorney fees incurred in prosecuting her complaint against Plaza del Sol and the matter is remanded for further proceedings as to that request. In all other respects, the judgment is affirmed. Mrs. Su is entitled to recover her costs on appeal.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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