Filed 6/19/17 Bakari v. Foster Poultry Farms CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CATRELL BAKARI,

Plaintiff and Appellant,

v.

FOSTER POULTRY FARMS, INC.,

Defendant and Respondent.

F071878

(Super. Ct. No. 11CECG04408)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge.
Law Offices of Armand Tinkerian and Armand Tinkerian for Plaintiff and Appellant.
Wanger Jones Helsley and Michael S. Helsley for Defendant and Respondent.
-ooOoo-

Plaintiff appeals from the judgment entered against him after the trial court granted defendant’s motion for summary judgment. Plaintiff contends triable issues of material fact remained in his causes of action for racial discrimination and wrongful termination in violation of public policy. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Representing himself, Catrell Bakari (plaintiff) filed a first amended complaint alleging two causes of action for racial discrimination and wrongful termination in violation of public policy. Plaintiff alleged he is African-American and was employed by Foster Poultry Farms, Inc. (defendant) as a security officer beginning in December 2007. Plaintiff was told he would only be hired if defendant could use his ethnicity and previous address to obtain a tax benefit; he agreed out of necessity. Subsequently, defendant denied plaintiff promotional opportunities based on race. Defendant failed to take action when plaintiff complained that a coworker spit in his food, although plaintiff had an audio recording to prove it. After defendant implemented a new rule that employees would be disciplined for forgetting to bring their employee identification cards to work, including terminating their employment after the third violation, plaintiff, the only African-American on staff, was written up twice for forgetting his identification card, although other non-African-American employees received no consequences for their violations. Plaintiff was harassed by his coworkers, but when he submitted a written grievance about it, defendant took no action. Instead, defendant made false accusations based on forged documents that plaintiff lied on his employment application, indicating he had not worked for defendant previously; defendant claimed it had discovered an application and other employment records for plaintiff from employment in 2002.
Defendant filed a motion for summary judgment asserting it had legitimate, nondiscriminatory business reasons for not promoting plaintiff and for terminating his employment. It asserted the other incidents alleged by plaintiff either were not based on race or did not constitute adverse employment actions actionable as racial discrimination. Defendant asserted it was entitled to judgment as a matter of law.
Plaintiff opposed the motion, arguing he did not falsify his employment application because in 2002 he worked for a temporary agency; although he worked at defendant’s facility, he did not directly work for defendant. He denied filling out or signing the 2002 employment application or any of the other employment documents produced by defendant purportedly for his 2002 employment. Therefore, defendant had no legitimate business reason for terminating plaintiff’s employment. Additionally, plaintiff disputed defendant’s claim that the other alleged incidents were not discriminatory or not actionable.
The trial court granted defendant’s motion for summary judgment and plaintiff appeals.
DISCUSSION
I. Summary Judgment
Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Id., subd. (p)(2).) Once the moving defendant has met its initial burden, “the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)
A grant of summary judgment is reviewed de novo. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) There is a triable issue of fact precluding summary judgment “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120.) The evidence of the party opposing the motion must be liberally construed, and that of the moving party strictly construed. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 308.)
II. Racial Discrimination Cause of Action
Plaintiff’s second cause of action alleges racial discrimination. Under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), it is an unlawful employment practice for an employer “to discharge [a] person from employment or . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment” because of the person’s race. (Id., § 12940, subd. (a).) Federal law contains similar provisions, which are applied similarly. (Title VII of the Civil Rights Act of 1964 (Title VII); see 42 U.S.C. § 2000e-2; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1747-1748 (Heard).) In an unlawful discrimination claim, a plaintiff may allege disparate treatment or disparate impact discrimination. (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 658 & fn. 3.) Plaintiff’s second cause of action alleges a cause of action for the disparate treatment form of racial discrimination, which is based on a claim the employer treated the employee differently because of the employee’s race or other protected classification. (Id. at p. 658, fn. 3.) “In disparate treatment cases, the plaintiff must prove the ultimate fact that the defendant engaged in intentional discrimination.” (Heard, supra, at p. 1748.)
At trial in a disparate treatment case, the plaintiff has the initial burden of establishing a prima facie case of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The elements of a prima facie case are: (1) the plaintiff was a member of a protected class, (2) the plaintiff was performing competently in the position he held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. (Id. at p. 355.) If the plaintiff makes that showing, a presumption of discrimination arises. (Ibid.) The burden then shifts to the employer to rebut the presumption with evidence the adverse employment action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) If the employer meets that burden, the presumption of discrimination disappears and the plaintiff may attack the employer’s proffered reasons as pretexts for discrimination or offer other evidence of discriminatory motive. (Id. at p. 356.) The ultimate burden of proof of discrimination remains with the plaintiff. (Ibid.)
When a defendant moves for summary judgment on a discrimination claim, it may do so by challenging the plaintiff’s initial ability to prove a prima facie case of discrimination. Alternatively, the defendant may assume a prima facie case may be made, and proceed directly to the second step by showing it had a legitimate business reason, unrelated to prohibited bias, for the employment action. (Guz, supra, 24 Cal.4th at pp. 357, 358.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Id. at p. 361.)
In its motion, defendant presented these facts as undisputed: On October 25, 2007, plaintiff, who is African-American, filled out an employment application to work for defendant; in the application, plaintiff agreed any misstatement or omission of any material fact may be cause for dismissal if hired. On the application, plaintiff checked boxes indicating he had never previously applied to or worked for defendant. On December 13, 2007, he was hired by Rebecca Vallier, defendant’s human resources supervisor, as a security officer. Plaintiff reported to defendant’s security supervisor, Raul Garza, among others; Garza was also security supervisor at other Foster Farms locations. During plaintiff’s employment, Garza supervised five other African-American security officers. At the time plaintiff’s employment was terminated, there were approximately 35 African-American employees at the Foster Farms location where plaintiff worked.
In 2008, defendant implemented a progressive discipline rule for employees who forgot their identification cards. The first time would result in a warning, the second a consultation, and the third termination. The first time plaintiff forgot his identification card, he was written up; at the same time, every other employee in his department was written up for forgetting their cards in the past. Plaintiff was written up a second time. Three other security officers (two Hispanic males and one Asian female) also received written warnings for forgetting their identification cards.
On one occasion, plaintiff was told not to go to an “EMS training class” because it was “already full.” While plaintiff was employed by defendant, no lead or supervisory security officer position became available at the Foster Farms location where plaintiff worked. Security officers sometimes filled in for a lead security officer, but the security officers who did so had more seniority than plaintiff.
In 2008, plaintiff complained that a coworker, Por Xiong, spit in his food. Plaintiff claimed he had an audio recording in which the spitting could be heard. Garza listened to the recording, but did not believe it was a spitting sound. Garza spoke to Xiong, and Xiong denied spitting in plaintiff’s food. Plaintiff had no further issues with his food being tampered with. Plaintiff subsequently sued defendant based on the alleged spitting incident, but his action was dismissed.
In April 2010, plaintiff officially changed his last name from Brown to Bakari. On May 7, 2010, plaintiff submitted a written grievance to defendant, regarding three incidents. In one incident, the lead security officer asked plaintiff to deliver paperwork to Xiong, but plaintiff suggested it would be better if Xiong did the paperwork at the end of his shift; the lead security officer complained to Garza that plaintiff refused to deliver the paperwork. In a second incident, at a shift change, plaintiff stood outside the guard shack, believing security officer Mao Vang was logging in vehicles entering the site; the lead security officer later told plaintiff that Vang complained because plaintiff had not logged in the trucks and counseled plaintiff not to stand outside, but to go directly to work when his shift started. In a third incident, Vang, acting as lead security officer, asked plaintiff to change locations with Xiong and plaintiff declined; he was later told he needed to obey Vang’s orders, although plaintiff asserted it was not phrased as an order, but as a request.
After receiving the grievance, Garza arranged for plaintiff and Garza to meet with Vallier. In preparation for the meeting, Vallier reviewed plaintiff’s entire personnel file. She saw for the first time that there were two employment applications, from 2002 and 2007, in his file. The 2007 application had boxes checked indicating plaintiff had never previously applied for work at Foster Farms or worked there. The file also contained a 2002 W-4 form and a 2003 personnel action form, indicating plaintiff resigned effective January 10, 2003, for personal reasons.
At their meeting on May 14, 2010, Vallier listened to plaintiff’s grievance in full and said she believed the statements in his written grievance. Toward the end of the meeting, Vallier asked plaintiff if he had ever worked or applied to work at Foster Farms before October 2007. Plaintiff denied that he had. Vallier showed him the 2002 employment application and other documents and gave him a chance to tell the truth; she warned him he would be terminated if he lied. Plaintiff again denied working or applying to work at Foster Farms before 2007. On May 19, 2010, Vallier terminated plaintiff’s employment for falsifying his October 2007 employment application. Defendant has a zero tolerance for falsifying records and has terminated four other employees for falsifying employment applications or other records.
Defendant also presented evidence that its business records prior to 2003 contained the 2002 application and other documents reflecting plaintiff’s employment with defendant in 2002. Defendant explained its recordkeeping system and how it included information from plaintiff’s 2002 employment at the time defendant upgraded its electronic records in 2003 and 2004. Defendant also noted that, after it began converting its paper personnel files to electronic images, it scanned both of plaintiff’s employment applications into its electronic system on January 7, 2008.
In his response to defendant’s separate statement of undisputed facts, plaintiff asserted some of defendant’s facts were false, but failed to cite any evidence in support of that assertion. He filed his own declaration, in which he asserted he was hired because defendant could obtain tax benefits based on his race and his former address, which was within an enterprise zone. He stated that, after the tax benefit expired, defendant began to scrutinize his work performance because of his race and because the tax benefit had expired, even though his work performance was not different from that of his coworkers. Plaintiff acknowledged he was warned that, if he forgot his identification card twice, he could face termination; he received two employee performance notices for forgetting his identification card. He asserted others who forgot their identification cards were not similarly written up. Plaintiff asserted he trained security officers who had seniority over him, and Vang was promoted to a supervisory position over him, after which he continued to instruct her. He asked to take a CPR training class with Vang and Xiong, but was told it was full. He changed his name from Brown to Bakari as part of his Afrocentric identity, but two coworkers reacted negatively to the change. Plaintiff denied applying for employment with defendant in 2002 or signing any of the related documents and, based on the handwriting, concluded Vallier filled out the 2002 employment application. Plaintiff admitted working on defendant’s property in 2002, but claimed he worked for Carranza Contract Labor Services, a temporary agency.
A. Termination of employment
Defendant’s motion for summary judgment presented facts and evidence demonstrating defendant had a legitimate, nondiscriminatory reason for terminating plaintiff’s employment: plaintiff presented false information in his employment application by indicating he had not applied to or worked for defendant prior to submitting his October 2007 application. Because defendant met its initial burden, the burden was on plaintiff in response to “ ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) “Circumstantial evidence of ‘ “pretense” ’ must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) It is not enough for plaintiff to “ ‘show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.” [Citations.]’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).)
Plaintiff contends defendant’s decision to terminate his employment was wrong because he did not put false information on his 2007 employment application. He contends he did not work directly “for” defendant (in the words of the 2007 application) in 2002, but only worked “at” its facility while working “for” a temporary agency. He asserts he never filled out an employment application to work for defendant in 2002 and the application and other documents presented by defendant were not authentic and must have been forged. He has not pointed us to any competent evidence of forgery in the record, however. For example, he did not present expert testimony that the documents were forged. He did not present exemplars of his handwriting or Vallier’s to show the handwriting on the 2002 application was more likely Vallier’s. Plaintiff also presented no evidence disputing defendant’s evidence regarding its recordkeeping and the presence of the 2002 employment documents and information in its records in 2002.
Further, the question is not whether defendant made the right decision in terminating plaintiff’s employment. The only question is whether the decision was made with discriminatory animus. Plaintiff did not present specific and substantial evidence of “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions’ ” in defendant’s asserted reason for terminating plaintiff’s employment that “ ‘a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.)
Plaintiff also contends his termination was a response to his Afrocentric name change. He presented no evidence to support such a conclusion. He declared that one coworker, on hearing of his name change, “indicated that he would not have done such a thing because it would disappoint his family,” and the look on another coworker’s face told him “he was not too happy about my new Afrocentric name.” Plaintiff presented no evidence either coworker had any influence on the decision to terminate his employment. Plaintiff also presented no evidence Vallier, who made the decision to terminate his employment, understood the Afrocentric nature of the name change or had any negative reaction to it. There apparently is no dispute Vallier was aware of plaintiff’s race, even at the time she hired him.
Finally, plaintiff contends he was terminated based on race after the tax incentive defendant obtained by hiring him expired. He asserts he was only hired because he was African-American and agreed to say he still lived at his old address, which was in the tax incentive area. When the tax incentive expired, he claims he was subjected to different terms and conditions of employment and terminated. Plaintiff has not identified any statement of fact or supporting evidence in the record that supports this argument. He has cited no evidence that any tax benefit defendant obtained by hiring plaintiff was related to his race, that the tax incentive expired, or when it expired. With respect to his termination, he cites to no evidence he was treated differently than employees of other races who defendant concluded falsified their employment applications or other records.
Plaintiff failed to raise a triable issue of material fact on his claim defendant terminated his employment based on race.
B. Denial of promotion
Plaintiff contends he was denied a promotion to a lead position because of his race. Defendant presented evidence there were no vacant lead security officer positions available during the time plaintiff worked for defendant, and other security officers were permitted to act as lead in the absence of the lead security officer on the basis of seniority. Plaintiff asserts those statements are false, but has not pointed to any contrary evidence in the record. Plaintiff has not raised a triable issue of fact regarding plaintiff’s claim he was denied a promotion on the basis of race.
C. Discipline
Plaintiff contends he was disciplined for forgetting his employee identification card when others who forgot theirs were not. Defendant submitted evidence that, in 2008 because of issues with employees forgetting their identification cards, it implemented a rule that, if an employee forgot his or her identification card, the first incident would result in a warning, the second would result in a consultation, and the third would result in termination. Plaintiff was written up twice; the first time, every employee in his department was written up for past incidents. Three other non-African-American security officers received written warnings for forgetting their identification cards.
Plaintiff presented no evidence contradicting defendant’s reason for implementing the rule or its evidence (which included plaintiff’s deposition testimony) that non-African-American employees were also written up for forgetting their identification cards. He presented no direct evidence suggesting the write-ups were race related. Thus, he raised no triable issue of material fact on this claim.
D. CPR class
Plaintiff contends he was not allowed to take a CPR class Vang and Xiong took. He concedes he was told the class was full. He cites no evidence in the record indicating that representation was untrue. He cites no evidence in the record suggesting he was prevented from taking the class due to his race.
E. Other incidents
Plaintiff also complains of four other incidents, one in which he accused a coworker of spitting in his food and three others defendant characterized as misunderstandings or miscommunications. An essential element of a discrimination claim is that the employer subjected the employee to an adverse employment action. (Guz, supra, 24 Cal.4th at p. 355.) “[A]n adverse employment action is not limited to ‘ultimate’ employment acts, such as a specific hiring, firing, demotion, or failure to promote decision. . . . [T]o be actionable, the [employer’s action] must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment. A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers).) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.)
Plaintiff complained to Garza that a coworker had spit in his food. He claimed to have an audio recording to prove it. Garza listened to the recording and did not believe it was a spitting sound; he also talked to the coworker, who denied spitting in plaintiff’s food. Plaintiff had no further issues with alleged food tampering. Plaintiff’s claim seems to be based on his conclusion the incident was unresolved, apparently because the coworker was not disciplined.
The failure to discipline the coworker was not an adverse employment action as to plaintiff; there is no evidence it “result[ed] in a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Akers, supra, 95 Cal.App.4th at p. 1455.) Further, although plaintiff asserts the coworker was Asian, he has not identified any evidence in the record suggesting defendant’s response to plaintiff’s complaint was motivated by racial discrimination.
Plaintiff presented a written grievance to defendant in which he complained of three incidents involving disagreements he had with coworkers. In one incident, the lead security officer asked plaintiff to deliver paperwork to Xiong. Plaintiff suggested it would be better if Xiong completed the paperwork at the end of his shift. The lead security officer reported to Garza that plaintiff refused to deliver the paperwork to Xiong.
In a second incident, during a shift change, plaintiff stood outside the guard shack and believed Vang was logging in vehicles entering the facility. The lead security officer later told plaintiff Vang had complained about plaintiff not logging in the trucks and instructed him to go directly to work when his shift started, rather than standing outside.
In a third incident, Vang, acting as lead security officer, asked plaintiff if he would like to change security locations with Xiong; plaintiff declined. When he was questioned later, plaintiff stated Vang only asked him if he wanted to change; she did not give him an order and should have phrased it differently if that was what she intended. Plaintiff was told he needed to obey Vang’s orders.
Plaintiff spoke with Garza about the incidents. Garza referred to the incidents as misunderstandings or miscommunications between plaintiff and his coworkers. Plaintiff later met with Garza and Vallier to discuss his written grievance. Plaintiff testified in deposition that Vallier believed what plaintiff stated in his grievance, said she would not punish him, and asked plaintiff what she could do to help.
Plaintiff’s response to defendant’s separate statement of undisputed material facts contained no evidence challenging the facts set out by defendant. The facts presented do not rise to the level of an adverse employment action. Plaintiff cites no evidence these incidents resulted in a substantial adverse change in the terms and conditions of the plaintiff’s employment. He cites no evidence he was disciplined for any of the incidents. He also presented no evidence the incidents or defendant’s response to them were motivated by an intent to discriminate on the basis of race.
F. Conclusion
The trial court correctly determined plaintiff failed to raise a triable issue of material fact in response to defendant’s motion attacking the second cause of action for racial discrimination.
III. Wrongful Termination in Violation of Public Policy
A cause of action for wrongful termination in violation of public policy “allows an employee to bring a tort cause of action against an employer who terminates an at-will employment on a ground that violates fundamental public policy.” (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 226 (Phillips).) “To support a wrongful discharge claim, the policy must be ‘(1) delineated in either constitutional or statutory provisions; (2) “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.’ ” (Ibid.)
Plaintiff’s wrongful termination cause of action is based on alleged violations of the FEHA and Title VII. The provisions of the FEHA and Title VII prohibiting discrimination in employment may provide the policy basis for a claim of wrongful termination in violation of public policy. (Phillips, supra, 96 Cal.App.4th at pp. 227, 234.) Defendant’s motion for summary judgment, however, demonstrated that plaintiff cannot establish violations of these anti-discrimination statutes, and plaintiff failed to raise a triable issue of material fact on his racial discrimination claims. Consequently, plaintiff’s third cause of action for wrongful termination in violation of public policy fails for the same reasons as his second cause of action for racial discrimination.
To the extent plaintiff attempted to base his wrongful termination claim on a public policy against fraud, as expressed in Civil Code section 1572, that claim was disposed of by demurrer to the fraud cause of action of the first amended complaint. Civil Code section 1572 prohibits a party to a contract from misrepresenting as a fact something the party does not believe to be true, or asserting something as a fact without sufficient information to warrant believing it is true, with intent to deceive another party to the contract or to induce another to enter into the contract. (Civ. Code, § 1572, subds. (1), (2).) It requires that a plaintiff show actual reliance on the misrepresentation, that is, “that the representation was an ‘ “immediate cause” ’ that altered their legal relations.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.)
The fraud plaintiff alleged in his pleading was the purportedly false representation that plaintiff worked for defendant prior to 2007 and the alleged forgery of employment documents supporting that representation. Defendant’s demurrer to plaintiff’s fraud cause of action, which contained similar allegations, was sustained without leave to amend because of the absence of allegations that plaintiff did anything in reliance on the alleged misrepresentations. Plaintiff has not identified any action he took or refrained from taking in reliance on the alleged fraud, nor has he cited any evidence presented in his opposition to the motion for summary judgment that raised a triable issue of material fact on the element of reliance.
Consequently, the trial court did not err in granting defendant’s motion for summary judgment.
DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.



DETJEN, J.
WE CONCUR:




LEVY, Acting P.J.



PEÑA, J.