Kyung v. El
Paseo South Gate
Filed 8/6/13
Kyung v. El Paseo South Gate CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
MYUNG HO KYUNG,
Plaintiff
and Appellant,
v.
EL PASEO SOUTH GATE, LLC,
Defendant
and Respondent.
B243720
(Los
Angeles County
Super. Ct.
No. VC058316 )
APPEAL from a judgment of
the Superior Court of
County, Yvonne T. Sanchez, Judge. Reversed and remanded with directions.
David D. Kim &
Associates, David D. Kim and Daniel A. DeSoto for Plaintiff and Appellant.
Schelberg & Ross and
James H. Ross for Defendant and Respondent.
_______________________________________
Plaintiff and appellant Myung Ho Kyung (Kyung) appeals
from the granting of a motion for summary
judgment (Motion) brought by his landlord, defendant and respondent El
Paseo Shopping Center LLC (Respondent).
In ruling upon the Motion, the trial court did not have the benefit of a
recent decision by the California Supreme Court, Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn.
(2013) 55 Cal.4th 1169 (Riverisland). Mainly in light of that decision, we will
reverse the judgment.
In
reaching that conclusion, we express no opinion on the merits of Kyung’s
claims. While we make some comments below
on the future of this lawsuit, we mainly focus on determining that the Motion
should not have been granted in light of the current record.
In
2001, Kyung signed a lease (Lease) with respect to a business premises
(Premises) at the El Paseo Shopping Center (Shopping Center). There, with his wife, Kyung operated a
restaurant (Restaurant). Kyung entered
into a written lease dated February 23, 2001 and, by assignment,
Respondent subsequently became Kyung’s landlord with respect to the Premises.
In
August 2009, Respondent and Kyung executed a written amendment to the Lease
(the “Lease Amendmentâ€), which reduced
the Restaurant’s monthly rent to $1,000 and forgave back rent if Kyung remained
in the Premises until the Lease’s expiration.
With ninety days written notice, paragraph 4 of the Lease Amendment
gave Respondent “the right†to relocate the Restaurant, at Respondent’s
expense, at any time during the term of the lease. Paragraph 5 afforded Respondent the
“right to terminate†the Lease, also with such notice.
In
late September 2010, Kyung received a notice with respect to terminating the
Lease (9/10 Notice). On December
20, Respondent withdrew the 9/10 Notice and served Kyung with another
termination notice (12/10 Notice), demanding his departure from the Premises by
March 20, 2011.
On March 16, 2011, Kyung filed this lawsuit, alleging causes of action
for breach of contract, specific
performance, fraud and injunctive relief.
Two days later, he requested a temporary restraining order precluding
his eviction. The trial court denied the
request, but set a hearing on Kyung’s motion for preliminary injunction.
On April 18, 2011, Respondent filed an unlawful detainer action,
seeking recovery of the Premises. On May
6, the trial court granted the motion for preliminary injunction. Respondent dismissed its unlawful detainer
action. On June 15, Respondent
moved to terminate the preliminary injunction, citing the Lease’s
expiration. On July 21, the trial court
granted that motion.
On July 27, Respondent filed
another unlawful detainer action, which concluded with a stipulated judgment in
its favor. In December 2011, Kyung
vacated the Premises and closed the Restaurant.
On June 26, 2012, in granting the Motion, the trial court stated:
“The lease, as amended, is controlling.
It contains an integration clause stating ‘It is understood that there
are no oral or written agreements or representations between the parties hereto
affecting this lease.’ [Citation.] It further states ‘This lease, and all
amendments hereto, are the only agreement between the parties
hereto.’ . . . Moreover, the statute of frauds
requires that leases of real property for more than one year be in
writing. . . .
“The terms of the lease are
unambiguous. The right of relocation
extends to [Respondent] only . . . . The right
to rescind the notice of relocation at any time before actual relocation is implicit. In this case, [Respondent] rescinded the
notice, allowed [Kyung] to remain at its original location until the lease
expired on its own terms.
[Citation.] [Respondent] had no
duty to renew the lease or relocate [Kyung]. . . .
“The fraud allegations
contradict the written contract
terms. . . . Misrepresentations, to be actionable
must relate to past or then existing fact, not future conduct or predictions as
to future events. [Citation.] [Kyung’s] allegations all relate to actions
that [Respondent] ‘would’ do or not do in the future. These types of promises sound in breach of
contract not tort . . . . [C]ontracts related to
long term leases of real property must be in
writing . . . . [Kyung] cannot justifiably rely
on such promises. Moreover, [Kyung] has
not pled or shown reliance damages (as opposed to the alleged breach of
contract damages).â€
The trial court also ruled on various evidentiary
objections. In particular, that court
overruled Respondent’s Objections to the Declarations of Kyung and Han
(Objections).
On September 27, 2012, the trial court awarded
Respondent attorney’s fees. After entry
of Judgment, a Notice of Appeal was
filed.
The Restaurant’s closure
after this lawsuit’s filing in effect mooted Kyung’s causes of action for
action are now breach of contract and fraud.
KYUNG’S
ALLEGATIONS
In granting the Motion, the trial court rejected Kyung’s
allegations which, in his view, precluded that court’s ruling. Inasmuch as relevant to this opinion, those
allegations are set forth in this section.
Although Kyung and his wife devoted many working hours
and invested in excess of $350,000, after a while the Restaurant did not
generate sufficient revenue. Respondent,
though, continued to let the Restaurant operate.
Respondent’s “agent and manager in charge of the Shopping
Center,†Beth Villalobos (Villalobos), offered to reduce the Premises’ rent and
forgive all past owed rent, if the Restaurant would stay open until the Lease’s
expiration. Moreover, she added, at its
expense, Respondent would relocate the Restaurant to another locale in the
Shopping Center, with a new lease.
As Kyung’s English is limited, Don Han (Han), his friend,
would sometimes be his translator in dealings with Respondent, including with
Villalobos. Villalobos told Han that the
Lease Amendment’s reference to Respondent’s “right†with respect to any
relocation was “legalese,†and the Restaurant’s future relocation was “100
percent†if Kyung went along with that amendment. Han told Kyung what Villalobos said. Based on those oral promises, especially as
Kyung had come to rely on Villalobos, he signed the Lease Amendment.
In August 2010, Villalobos
stated to Kyung that the next month the Restaurant would be relocated to a
space previously occupied by TOGO’s.
Villalobos later came to the Restaurant with John Gebhardt, who
introduced himself as a financial advisor for Respondent. Gebhardt told Kyung that he would be
evaluating the compensation Respondent would pay Kyung as part of the
relocation.
In September 2010,
Villalobos visited the Restaurant, telling Kyung she had “good news.†She had a typewritten note, but did not give
Kyung a copy. Villalobos remarked
Kyung’s new lease would be for 10 years:
the initial year, three months of no rent and then $1,835 per month for
the next nine months; the next four years would have a monthly rent of
$3,670; and after five years, the monthly rent would increase by
12.5 percent.
Respondent’s contractor,
Michael Messang, said to Kyung that he would be overseeing the construction of
Kyung’s restaurant at its new location.
An email, dated October 14, 2010, from Messang to Villalobos
discussed the related construction costs and time necessary for completion.
In delivering to Kyung the
9/10 Notice, Villalobos asked to converse with Han. After speaking to Han, Villalobos returned
the telephone to Kyung. Han stated to
Kyung that, according to Villalobos, he should disregard the 9/10 Notice
as the Lease had to expire before the execution of any new lease. Relying on this information, Kyung
disregarded the 9/10 Notice.
On October 27, 2010,
Respondent informed Kyung that it was exercising its right to relocate him,
pursuant to paragraph 4 of the Lease Amendment.
On or about November 7, 2010, Villalobos told Kyung that she had
“bad news.†Respondent could not
relocate him or give him a new lease because of a non‑compete
provision in another tenant’s lease.
Villalobos noted Kyung could either vacate on December 31 (pursuant
to the 9/10 Notice), change the Restaurant’s menu to offer non-Asian food, or
move to another shopping mall owned by Respondent. Kyung later submitted a proposed non-Asian
menu, but that was ignored.
Was
the trial court correct in rejecting, as a matter of law, Kyung’s causes of
action for breach of contract and fraud?
Was the trial court correct in its statements about Kyung’s reliance and
damages?
“ ‘The
pleadings define the issues to be considered on a motion for summary
judgment. [Citation.] As to each claim as framed by the complaint,
the defendant must present facts to negate an essential element or to establish
a defense. Only then will the
burden shift to the plaintiff to demonstrate the existence of a triable,
material issue of fact. . . . [Citations.]’ We review orders granting or denying a
summary judgment motion de novo.
[Citations.] We exercise ‘an
independent assessment of the correctness of the trial court’s ruling, applying
the same legal standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law.’
[Citation.]†(
v. Superior Court (2013) 215 Cal.App.4th 561, 574.)
A. Applicable
Legal Principles
Code of Civil Procedure
section 1856(a) provides: “Terms set
forth in a writing intended by the parties as a final expression of their
agreement with respect to such terms as are included therein may not be
contradicted by evidence of any prior agreement or of a contemporaneous
oral agreement. . . . (g) This section does not
exclude other evidence of the circumstances under which the agreement was
made . . . to establish illegality or fraud.†Subsection (a) is a statutory codification of
the parol evidence rule; subsection (g) is considered “the fraud exception
to the parol evidence rule.†(
This
court, in Banco Do Brasil,
Cal.App.3d 973, 1001 (Banco Do Brasil)
(citations omitted), declared: “The
resolution of the issue of whether the [parol evidence] rule applies so as to
exclude any collateral oral agreement is one of law to be determined by the
court. [Citations.] We are therefore not bound by the trial
court’s determination . . . . We will consider
and resolve the issue de novo.â€
Application of the parol evidence rule “ ‘involves a two-part analysis: (1) was the writing intended to be an
integration, i.e., a complete and final expression of the parties’ agreement,
precluding any evidence of collateral agreements; and (2) is the agreement
susceptible of the meaning contended for by the party offering the
evidence?’ †(Id. at p. 1001.)
As
the trial court noted, the Amended Lease contains an integration clause. (The Lease also has an integration clause.
) The wording of the Amended Lease is
also entitled to weight. See, e.g. Civil
Code section 1639 [“When a contract is reduced to writing, the
intention of the parties is to be ascertained from the writing alone, if
possible . . . . â€]
That concept, though, is not dispositive. For example, “courts may consider all the
surrounding circumstances, including prior negotiations, and may examine the
collateral agreement itself to ascertain if it was meant to be part of the
bargain. . . . [A]re the parol terms such that, if
agreed upon, they most certainly would have been included in the writing?†(Software
Design & Application, Ltd. v. Price Waterhouse (1996) 49 Cal.App.4th
464, 470.)
B. Impact
of Riverisland
According
to the parol evidence rule, “when parties enter into an integrated written
agreement, extrinsic evidence may not be relied upon to alter or add to the
terms of the writing.†(
“Although
the parol evidence rule results in the exclusion of evidence, it is not
a rule of evidence but one of substantive law.†(Riverisland,
supra, 55 Cal.4th at
p. 1174.) Respondent contends that,
as the trial court overruled its objections to Kyung’s declarations, that rule
does not apply because the court had Kyung’s evidence in mind in ruling against
him. But the Supreme Court’s comment
(quoted above) in Riverisland
demonstrate that Respondent’s evidentiary contentions cannot prevail. That is, the parol rule is not simply a
matter of evidence, but as a rule of substantive law, can determine the
enforceable terms of an agreement. (
Even
though an agreement may be integrated, “fraud undermines the essential validity
of the parties’ agreement. When fraud is
proven, it cannot be maintained that the parties freely entered into an
agreement reflecting a meeting of the
minds. . . . The fraud exception has been part of the
parol evidence rule since the earliest days of our jurisprudence, . . . and
reaffirm the venerable maxim stated in Ferguson
v. Koch [(1928) 204 Cal. 342] at p. 347: ‘[I]t was never intended that the parol
evidence rule should be used as a shield to prevent the proof of
fraud.’ †(Riverisland, supra,
55 Cal.4th at p. 1182.)
Accordingly, a party can “present extrinsic evidence to show that the
agreement was tainted by fraud.†(
one must present more than “an unkept but honest promise, or mere subsequent
failure of performance.†(
conclusions below that Kyung’s fraud claim cannot now be resolved as a matter
of law.
The
same analysis applies to the trial court’s comments about the statute of frauds. That is, “a fraud action is not barred when
the allegedly fraudulent promise is unenforceable under the statute of
frauds . . . a rule intended to prevent fraud, in that case
the statute of frauds, should not be applied so as to facilitate fraud.†(Riverisland,
supra, 55 Cal.4th at
p. 1183.) Again, this statement in
fraud cause of action.
On
the other hand, from a defense perspective, “we stress that the intent element
of promissory fraud entails more than proof of an unkept promise or mere
failure of performance. We note also
that promissory fraud, like all forms of fraud, requires a showing of
justifiable reliance on the defendant’s misrepresentation.†(Riverisland,
supra, 55 Cal.4th at p. 1183.) Still, these thoughts, which Respondent
argues to this court, on this record cannot yield an affirmance of the trial
court’s ruling.
We
note a very recent decision, Julius
Castle Restaurant, Inc. v. Payne
(2013) 216 Cal.App.4th 1423 (Julius
Castle), has already addressed Riverisland. There, in upholding a verdict on an
intentional misrepresentation claim, the appellate court approved the trial
judge’s submission to the jury of the question, which the jury answered in the
affirmative, whether the landlord defendant had defrauded the tenant plaintiffs
notwithstanding the presence of an integration clause in the lease. (Id.
at pp. 1442‑1443.) The
jury’s verdict rejecting the plaintiffs’ breach of contract claim. (Ibid.)
C. Villalobos’
Authority
As explained above, some key
issues relate to Villalobos’ alleged oral promises. These issues apply to both
Kyung’s contract and fraud causes of action.
Even if Villalobos made the
alleged oral promises, Respondent seems to assert that she lacked the requisite
authority. Villalobos’ e-mails indicate
her title is “Director of Property Management†for Sperry Van Ness Asset
Management, which evidently acted as Respondent’s property manager for the Shopping
Center.
Kyung claims almost all, if
not all, of his lease contacts with Respondent went through Villalobos. On this record, whether Villalobos was an
agent or an ostensible agent of Respondent in dealing with Kyung (and Han) is
an issue of fact. (See
Inc. (1997) 59 Cal.App.4th 741, 748 (
D. Kyung’s
Breach of Contract Allegations
At least for the purposes of
this cause of action, Kyung and Respondent both appear to agree that the Lease
Amendment is a “final expression†of their arrangement. Their dispute is over the meaning of the
“right†to relocate as memorialized in paragraph 4 of the Lease
Amendment. Kyung contends Respondent
breached the Lease Amendment “by failing to relocate [Kyung] to the specified
location within Respondent’s shopping center, as promised.†Kyung also focuses upon Villalobos’ purported
“100 percent†oral promise to Han to relocate the Restaurant if Kyung signed
the Lease Amendment and continued to operate the Restaurant in its current
location through the end of the Lease.
This cause of action
obviously does not involve the “fraud exception†to the parol evidence
rule. Application of that rule to this
claim must thus be approached in a different manner. Parol evidence is not admissible if it
contradicts the terms of the written agreement.
(Code Civ. Proc., § 1856(a).)
Such evidence, though, may be admissible to explain the meaning of a
written term in such an agreement. (
(2007) 146 Cal.App.4th 586, 590, fn. 7 (Wagner).) Should a party to a contract wish to
introduce extrinsic evidence to interpret that contract, a trial court should
preliminarily evaluate such evidence before deciding whether or not that
contract is reasonably susceptible to the meaning urged by that party. (Id.
at p. 589.)
In light of Kyung’s
proffered evidence, especially Villalobos’ purported oral promises, is the
Lease Amendment reasonably susceptible to Kyung’s claim that document, in
effect, guaranteed the Restaurant’s relocation?
Alternatively, is the Lease Amendment reasonably susceptible to Kyung’s
claim that it did not afford Respondent an “implicit,†unilateral contractual
right to rescind an already issued notice of relocation? On this record, we answer both questions in
the affirmative.
1. Did
the Lease Amendment Guarantee the Restaurant’s Relocation?
The
parol evidence rule does not apply because Villalobos’ alleged oral promises
are not necessarily contradictory to paragraph 4 of the Lease Amendment. In Julius
Castle, the extrinsic evidence of the landlord’s promise to repair was not
admissible to prove a breach of contract, because the lease explicitly stated
it was the tenant’s duty to maintain and repair the premises. (Julius
Castle, supra, 216 Cal.App.4th at
pp. 1442‑1443.) The landlord’s alleged promises directly
contradicted the lease’s terms, because the landlord and the tenant could not
each be solely responsible for property maintenance and repair. (Ibid.;
see also Wagner, supra, 146 Cal.App.4th at p. 592 [“The problem with Wagner’s
extrinsic evidence is that it does not explain the contract language, it
contradicts it.â€].)
Kyung
and Respondent argue two different, but potentially reasonable, interpretations
of paragraph 4 of the Lease Amendment.
Kyung says that, in light of Villalobos’ alleged oral promises,
paragraph 4 meant Respondent would
relocate Kyung, pursuant to its right to do so. Determining
the appropriate interpretation seems to be a question of fact for the future of
this lawsuit. (See, e.g.,
Genentech, Inc. (2008) 43 Cal.4th 375, 395 (Genentech).) When parties
advance differing, but reasonable interpretations of contract language, the
dispute invariably precludes summary judgment.
(Id. at p. 395.)
2. Did
the Lease Amendment Give Respondent the Implicit
Right
to Rescind a Notice of Relocation?
Even if the Lease Amendment
did not guarantee the Restaurant’s relocation, it cannot now be said, as a
matter of law, that Respondent had an “implicit,†unilateral right to revoke
its pending notice of relocation, prior to any actual relocation. In supporting the trial court’s view it was
“implicit†that Respondent had such a unilateral right, Respondent points
to the trial court’s interpretation of the lease documents.
However, Villalobos’
purported oral promises may be relevant to prove that paragraph 4 does not
afford Respondent such a right. There is
no provision, in either the Lease or Lease Amendment, that explicitly grants
Respondent the unilateral right to rescind a notice of relocation. As such, Villalobos’ alleged oral promises do
not invoke the parol evidence rule, as they do not contradict
paragraph 4. Those oral promises
are sufficient to raise an issue of fact as to whether paragraph 4
reserves to Respondent the right to rescind an already issued notice of
relocation. The determination of the
parties’ intention at the time of the Lease Amendment’s execution may well turn
on an assessment of witness credibility, generally a matter for the trier of fact. (See Genentech,
supra, 43 Cal.4th at p. 395.)
E. Kyung’s
Promissory Fraud Allegations
In defense of his cause of
action for promissory fraud, Kyung submitted his declaration, in addition to
Han’s, to the trial court. Furthermore,
his June letter brief alleges Villalobos made two oral promises to him “without
the intent to performâ€:
(1) Respondent “would relocate [Kyung] to another space (8620
Garfield Avenue, Suite 100) if [Kyung] continued to operate at its current
location until the end of the lease termâ€; and (2) Kyung “would be given a new
lease.†Respondent also “falsely
represented the content of the [Lease] Amendment at the time of [its] signing,
specifically, that Respondent’s ‘right’ to relocate was ‘legalese’ and that the
relocation to TOGO’s was ‘100 percent’ so long as [Kyung] complied with the
terms of the [Lease] Amendment.â€
On remand, the trial court
should evaluate the extent to which these, and any other issues, should be
submitted to a jury, if there is a trial.
Still, in an effort to focus the matters for any trial or subsequent
motion proceedings, we make the following observations.
The trial court’s ruling did
not specifically refer to the parol evidence rule. But that court’s statements about the Lease
Amendment’s “integration clause†and other provisions in that document in
effect concluded that rule negated Kyung’s oral “fraud allegations.†That is, as those allegations in that court’s
words “contradict†the Lease Amendment, the parol evidence rule precluded as a
matter of law consideration of those fraud allegations.
According to Code of Civil
Procedure section 1856, that rule precludes extrinsic evidence because it is
“irrelevant†to determining the enforceable terms of an integrated
agreement. (Riverisland, supra, 55
Cal.4th at p. 1174.) The same evidence,
however, may be relevant to establishing fraud.
(Ibid.)
Additionally, according to
the trial court, as a matter of law
the statute of frauds negated Kyung’s fraud assertions about Villalobos’
alleged oral promises about a new lease.
In light of Riverisland, such
assertions cannot now be decided.
Additionally, the trial court found Kyung’s oral allegations
insufficient because “[m]isrepresentations, to be actionable must relate to
past or then existing fact, not future
conduct . . . . †citing Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153,
158. But that part of the opinion in
negligent misrepresentation, not fraud.
Kyung’s “false promiseâ€
theory of fraud does not require the promise to relate to a past or then
existing fact. (CACI No. 1902.) The elements of promissory fraud include: the defendant made a promise to plaintiff;
the promise was important to the transaction; defendant did not intend to
perform the promise when made; defendant intended plaintiff’s reliance on that
promise; plaintiff reasonably relied on the performance; defendant failed to
perform; and that failure was a substantial factor in causing harm to the
plaintiff. (CACI No. 1902.)
Villalobos’
purported oral promises focused on the relocation of the Restaurant which,
Kyung says, was critical to his signing the Lease Amendment. While “[i]t is insufficient to show an unkept
but honest promise, or mere subsequent failure of performance†(
could support a finding with respect to a lack of intent to perform. That evidence includes Respondent’s refusal
of Kyung’s proposed menu, containing non-Asian food, and the arguably belated
discovery of an existing non-compete clause, which Kyung alleges was violated
by at least two other restaurants. While
happening subsequent to the execution of the Lease Amendment, such evidence could
nonetheless be relevant in determining Respondent’s intention at the time of
the Lease Amendment’s execution. (See
of the contract and before any controversy has arisen . . . [is]
the most reliable evidence of the parties’ intentions.â€].)
According to Respondent,
Kyung failed to challenge the “enforceability,†which we interpret to mean
validity, of the Lease Amendment. Thus,
continues Respondent, Kyung’s claim that
Respondent lacked an intention to perform must fail. (Riverisland,
supra, 55 Cal.4th at p. 1183.) And, adds Respondent, subsequent events, such
as Gebhardt’s visit, prove Respondent intended to follow through with the
Restaurant’s relocation at the time of the Lease Amendment’s execution.
However, according to Kyung,
he signed the Lease Amendment because of Villalobos’ alleged oral promises that
the Restaurant’s relocation was “100 percent†and the terminology
establishing such a “right†was merely “legalese.†Therefore, Kyung would not challenge the
Lease Amendment’s enforceability because, he alleges, he believed that
amendment guaranteed relocation if the Restaurant remained in its current
location until the Lease’s expiration.
Kyung
also offers evidence that Villalobos’ purported oral promises were meant to
induce reliance. In 2002, when
Villalobos first approached Kyung about extending the Lease and relocating the
Restaurant, Respondent had already filed an unlawful detainer action and Kyung
planned to vacate. This may suggest
Villalobos made the alleged oral promises intending to induce Kyung into
signing the Lease Amendment.
The trial court summarily
stated that Kyung could not have justifiably relied on Villalobos’ purported
oral promises and had not alleged or shown any reliance or related
damages. But Kyung claims he had come to
rely on Villalobos through his interactions with her over the course of several
years. Like Kyung’s contract claim,
whether his reliance on Villalobos was reasonable is a question of fact, which
precludes summary judgment at this juncture.
(Kaplan, supra, 59 Cal.App.4th at p. 748.)
Kyung does not specify what
damages arise from each cause of action.
However, his opposition to the Motion claimed he suffered damages of “at
least $350,000 for tenant improvements and costs of relocation, $5,000 per
month compensation during relocation, damages for lost value of [his] business,
[and] contractual attorneys fees and costs.â€
On this record, Kyung’s claim of damages is sufficient to proceed.
Accordingly,
the judgment granting Respondent’s motion for summary judgment is reversed on
both the breach of contract and the fraud claims, and this lawsuit is remanded
to the trial court for further proceedings consistent with this opinion. Costs on appeal are awarded to Kyung.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
HEESEMAN,
J.
We Concur:
KLEIN,
P. J.
CROSKEY,
J.
tentative ruling became the order of the trial court.
name="_ftn2" title="">* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
