Filed 4/11/18 Schrubb v. Jager CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


KEVIN R. SCHRUBB,
Plaintiff and Appellant,
v.
R. JAGER et al.,
Defendants and Respondents.

A143451

(Del Norte County
Super. Ct. No. CVPI131301)


Plaintiff Kevin R. Schrubb is a prisoner who sued various employees of the California Department of Corrections and Rehabilitation (CDCR) for allegedly interfering with his right to file a timely habeas corpus petition challenging the legality of his confinement. On appeal from a judgment of dismissal, Schrubb contends the trial court erred in sustaining the defendants’ demurrer without leave to amend.
Because there has been no determination that Schrubb’s confinement is illegal, his complaint is barred by Government Code section 845.4. Further, he is collaterally estopped from pursuing his interference claim, which has already been rejected by a federal court that addressed whether the delay in filing Schrubb’s habeas petition was caused by extraordinary circumstances beyond Schrubb’s control. Accordingly, we shall affirm the judgment of dismissal.
DEADLINES FOR CHALLENGING LEGALITY OF CONFINEMENT
Because Schrubb’s claims turn in part on deadlines for filing a habeas petition challenging the legality of his confinement, we briefly set forth the relevant deadlines and the circumstances that may excuse compliance with those deadlines before turning to the allegations in Schrubb’s complaint.
The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for a prisoner who is in custody as a result of state court judgment to file a federal habeas petition challenging the legality of the detention. (28 U.S.C. § 2244, subd. (d)(1); Pace v. DiGuglielmo (2005) 544 U.S. 408, 410 (Pace).) The one-year period typically runs from the date on which the state judgment becomes final “by conclusion of direct review or the expiration of the time for seeking such review.” (28 U.S.C. § 2244, subd. (d)(1)(A).) The time for seeking direct review of a state conviction includes the 90-day period within which a defendant may “file a petition for a writ of certiorari from the United States Supreme Court, whether or not the [defendant] actually files such a petition.” (Bowen v. Roe (9th Cir. 1999) 188 F.3d 1157, 1159.)
“Before a state prisoner may file a federal petition for a writ of habeas corpus, the petitioner must exhaust state court remedies by presenting all federal claims to the highest state court.” (In re Marquez (2007) 153 Cal.App.4th 1, 13.) In light of this exhaustion requirement, AEDPA provides that the one-year statutory period for filing a federal habeas petition is tolled during the time a “properly filed” state habeas petition or other application for post-conviction relief is pending in state court. (28 U.S.C. § 2244, subd. (d)(2).) A petition is not “properly filed” if it is denied as untimely by the state court. (Pace, supra, 544 U.S. at p. 417.)
The AEDPA one-year statutory period may be equitably tolled “in extraordinary or exceptional circumstances.” (Valverde v. Stinson (2d Cir. 2000) 224 F.3d 129, 133.) “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (Pace, supra, 544 U.S. at p. 418.) A petitioner must demonstrate that the claimed extraordinary circumstance was the cause of the petition’s untimeliness. (Valverde v. Stinson, supra, 224 F.3d at p. 134.) Extraordinary circumstances do not justify equitable tolling when, “prior to the occurrence of those circumstances, the petitioner has been so neglectful in the preparation of his petition that even in the absence of the extraordinary circumstances, a reasonable person in the petitioner’s situation would have been unable to file in the time remaining within the limitations period.” (Id. at p. 136.)
Whereas AEDPA provides a statutory one-year time period within which to seek federal habeas relief, subject to statutory and equitable tolling, California has not established a set time period for a prisoner to file a petition collaterally attacking the legality of the prisoner’s confinement. (In re Reno (2012) 55 Cal.4th 428, 460.) “Instead, California courts ‘appl[y] a general “reasonableness” standard’ to judge whether a habeas petition is timely filed.” (Walker v. Martin (2011) 562 U.S. 307, 311.) Under California law, “[a] prisoner must seek habeas relief without ‘substantial delay,’ [citations] as ‘measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.’ ” (Id. at p. 312.)
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal arises out of a judgment after the trial court sustained a demurrer, we accept as true the allegations of Schrubb’s complaint and also consider matters properly subject to judicial notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The following facts are derived from the allegations of the complaint and from judicially noticeable sources.
Schrubb was sentenced to a term of 304 years to life in 2004 after being convicted of various charges arising out of a botched bank robbery. After the Court of Appeal affirmed the judgment, the California Supreme Court denied Schrubb’s petition for review on February 22, 2006. Under AEDPA, Schrubb had until May 23, 2007, to file a federal habeas petition challenging the legality of his detention. However, because he needed to exhaust his post-conviction remedies in state court before seeking federal habeas relief, the May 23 deadline is more properly characterized as the date by which Schrubb needed to file a state habeas petition, the filing of which (if timely) would statutorily toll the limitations period for filing a federal habeas petition under 18 U.S.C. section 2244, subdivision (d)(2).
As of May 2007, Schrubb was incarcerated at Pelican Bay State Prison. On May 16, he contacted a correctional officer assigned to the prison’s law library, who is identified in the complaint as R. Jager, and a library technical assistant identified in the complaint as D. Rusk. In a written note to Jager dated May 16, Schrubb stated that the time to file his state habeas petition was set to expire on Monday, May 22. He wrote that he “was hoping you could get me into the law library on Monday May 22nd in order to have my habe [sic] copied and mailed.” Schrubb alleges that Jager and Rusk promised they would call him to the law library on May 22.
Schrubb was called to the law library on Sunday, May 20, 2007. He had not completed his habeas petition and asked to be called back to the library on the afternoon of May 22, “per the agreement.” Schrubb was not called back to the library on May 22. He immediately wrote to Jager and Rusk to memorialize what had happened and to request immediate access to the law library to copy and mail his petition. On May 28, he again wrote to Jager. His note was directed to Rusk, who advised Schrubb that she was unsure when she could fit him in given the high volume of prisoner requests for library access. She requested that Schrubb complete a law library access request form, which he filled out and returned.
Ultimately, Schrubb was called to the law library on June 12, 2007, for the purpose of copying his habeas petition. His petition, with exhibits, was 2,236 pages long. Jager advised Schrubb that he would be called back to the library when his petition was copied. On June 21, Schrubb was called back to the law library to pick up his petition. Schrubb asked to have the law library assist him with mailing the petition. He was advised that the law library was unable to assist with mailing due to the petition’s size. He was instructed to contact the prison’s mail room as well as Receiving and Release (R&R) for assistance. He did so on June 27. An employee in R&R responded that the law library staff needed to verify the legal nature of the mailing to allow R&R to ship it at the state’s expense. Schrubb passed the message along to Rusk, the library technical assistant.
On July 18, 2007, Schrubb filed an administrative appeal seeking help with mailing his petition to the Placer County Superior Court. A first level decision issued on September 17, 2007, contained the finding that Rusk, the library technical assistant, had provided Schrubb with a copy of his request for photocopies showing that the material was legal and related to an active case. Schrubb was informed that the mailing was too bulky to mail out from the law library and that he needed to give R&R the “note of verification” that Rusk provided to him in order to mail the petition. Schrubb’s administrative appeal was denied. The appeal was denied at the second level in a decision dated November 15, 2007. The second level decision reiterates that Rusk provided Schrubb with the necessary paperwork establishing that the mailing was legal in nature, and specifies that Schrubb received that paperwork on July 26. As set forth in the second level decision, when Schrubb was asked why he simply did not provide the documentation to R&R, he responded that he was informed the verification needed to be done “verbally.” It was noted in the decision that Schrubb had successfully mailed out nine legal mailings in 2007 and had been informed of the proper procedure for mailing bulk items. On March 11, 2008, Schrubb’s appeal was denied in a director’s level appeal, thus exhausting his administrative remedies. The director’s level decision noted that Scrubb had been told he needed to provide the written confirmation supplied by Rusk to R&R to confirm the legal nature of the mailing.
Schrubb mailed his state habeas petition to the Placer County Superior Court on January 24, 2008. As reflected in the complaint and an attachment to the complaint, a correctional officer assisted Schrubb with the mailing while he was placed in administrative segregation.
In June 2008, the Placer County Superior Court denied Schrubb’s state habeas petition as untimely under California law. He sought review in the Court of Appeal in a petition filed in September 2009, over one year after the superior court had denied his petition. The Court of Appeal summarily denied his petition in October 2009. Schrubb waited until April 2010 to seek relief in the California Supreme Court, which denied his petition in January 2011.
In May 2010, while his state habeas petition was still pending before the California Supreme Court, Schrubb filed a federal habeas petition in the United States District Court for the Eastern District of California. California’s Attorney General sought to dismiss the petition as untimely. In his opposition to the motion dismiss, Schrubb argued that equitable tolling should apply because he attempted to file his state habeas petition before the May 23, 2007 deadline but was unable to do so for reasons beyond his control. Schrubb described to the federal district court at length the history underlying the delay in copying and mailing his state habeas petition, including the administrative appeal arising out of his attempt to mail the petition.
In an order dated April 21, 2011, the federal district court granted the Attorney General’s motion to dismiss. The court ruled that the federal habeas petition was untimely under AEDPA and that Schrubb was not entitled to statutory tolling under 28 U.S.C. section 2244, subdivision (d)(2) because his state habeas petition was denied as untimely. The court further concluded that Schrubb was not entitled to equitable tolling of the limitations period. It reasoned that Schrubb was informed repeatedly of the requirements to mail his petition. The court rejected Schrubb’s claim that he believed R&R needed verbal verification of the legal nature of the mailing, reasoning that the contention was belied by the documents he had provided to the court establishing that he had been advised repeatedly to provide written verification to R&R.
Following entry of judgment dismissing his federal habeas petition, Schrubb sought relief in the United States Court of Appeal for Ninth Circuit, which denied his request for a certificate of appealability in July 2012. Schrubb filed a petition for a writ of certiorari in the United States Supreme Court. The petition was denied in December 2012.
In April 2013, Schrubb filed a government claim against the CDCR and various employees of the CDCR. The claim was denied in June 2013.
Schrubb thereafter filed the complaint giving rise to this appeal in Del Norte County Superior Court. He names as defendants nine individual employees of the CDCR, including Jager and Rusk (collectively, defendants). After alleging that the defendants prevented him from copying and mailing his state habeas petition until long after the one-year statutory period had expired, Schrubb asserts four intentional tort causes of action in the complaint. In the first cause of action, he alleges that all the defendants denied him access to the courts. In the second cause of action, he alleges that seven of the named defendants “illegally implemented several underground rules,” thereby denying him “access to the courts and his procedural due process rights.” In the third cause of action, he alleges that all the defendants refused to comply with regulations governing the procedures for processing a prisoner’s outgoing legal mail, in violation of his due process rights. And, in his fourth cause of action, he alleges that all the defendants erroneously based their denials of his administrative appeal on unsanctioned and unlawful procedures. He seeks declaratory relief, compensatory damages of $1.5 million, and punitive damages of $3 million.
Defendants had the action removed to federal court. Schrubb agreed to dismiss the one federal claim asserted in his complaint—based on references to the United States Constitution in the fourth cause of action—and have his state claims remanded. The federal court dismissed Schrubb’s federal claim and remanded the remaining state law claims to the Del Norte County Superior Court.
Following remand, the defendants filed a demurrer to the complaint. The lower court did not receive an opposition to the demurrer or a request to extend the time to oppose the demurrer. Defendants thereafter filed a notice reflecting that no opposition had been received and urging the court to sustain the demurrer. At the hearing on the demurrer, counsel appeared on behalf of defendants but there was no appearance on behalf of Schrubb.
The trial court issued an order sustaining the demurrer without leave to amend. Following service of notice of entry of a judgment of dismissal, Schrubb filed a motion for reconsideration. The court denied the motion for reconsideration, reasoning that Schrubb had failed to timely oppose the demurrer and that his failure to appear at the hearing on the demurrer did not affect the court’s ability to rule on the demurrer. Schrubb filed a timely notice of appeal from the judgment of dismissal.
DISCUSSION
I. Standard of Review
We apply two separate standards of review when considering a trial court order sustaining a demurrer without leave to amend. (McClain v. Octagan Plaza, LLC (2008) 159 Cal.App.4th 784, 791.) First, we apply de novo review in assessing whether the trial court erred as a matter of law in sustaining the demurrer. (Ibid.) If the facts as pleaded do not state a cause of action, we then consider whether the court abused its discretion in denying leave to amend the complaint. (Id. at pp. 791–792.)
“We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. [Citations.] We are not bound by the trial court’s stated reasons, if any, supporting its ruling; we review the ruling, not its rationale.” (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.)
II. Schrubb Cannot Plead a Viable Cause of Action Until There is a Determination that his Confinement is Illegal.
Schrubb seeks monetary damages for allegedly tortious violations of various constitutional provisions, statutes, and regulations. Notwithstanding the statutory, regulatory, or constitutional basis for each of Schrubb’s intentional tort claims, the crux of each cause of action is that the defendants’ actions interfered with his ability to timely file a habeas petition to challenge his conviction. As we explain, Schrubb’s claims fail because there has been no determination that his confinement is illegal. (See Gov. Code, § 845.4.)
We note that this issue was raised by defendants for the first time in the respondents’ brief on appeal. Although as a general rule we do not consider issues raised for the first time on appeal, we may do so in a case, such as this one, where the issue presents a pure question of law on undisputed facts. (B&P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.) “[A]n appellant challenging the sustaining of a general demurrer may change his or her theory on appeal . . . . [Citations.] . . . After all, we review the validity of the ruling and not the reasons given.” (Ibid.)
In general, public entities in California are immune from tort liability unless a statute expressly provides otherwise. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897; Gov. Code, § 815, subd. (a).) By contrast, “ ‘public employees are liable for their torts except as otherwise provided by statute.’ ” (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1382.)
Government Code section 845.4 specifies the circumstances under which public entities and public employees may be liable for interfering with the right of a prisoner to seek review of the legality of his confinement. The statute provides generally that both public entities and public employees acting within the scope of their employment are immune from liability for such interference, except when the employee’s “intentional and unjustifiable interference” with the prisoner’s right to challenge the legality of his confinement is the proximate cause of the prisoner’s injury. (Gov. Code, § 845.4.) However, no such cause of action accrues “until it has first been determined that the confinement was illegal.” (Ibid.) Thus, a prisoner is barred from pursuing an interference claim against public employees acting within the scope of their employment unless there has been a determination that the confinement was illegal. (Cf. Code Civ. Proc., § 312 [civil actions can only be commenced after the cause of action has accrued].) It is not enough to simply claim interference if the prisoner was not entitled to relief in the legal challenge with which public employees allegedly interfered.
Schrubb concedes on appeal that Government Code section 845.4 bars a tort action for interference with the right to challenge the legality of the prisoner’s confinement where public employees are acting within the scope of their employment and there has been no determination the confinement is illegal. We would add that this principle applies to all of Schrubb’s intentional tort causes of action because they are all, in substance, claims that public employees interfered with his right to challenge his conviction. And it is undisputed that there has been no determination that Schrubb’s confinement is illegal. Nevertheless, Schrubb contends that Government Code section 845.4 does not bar his complaint because the defendants were not acting within the scope of their employment. We disagree.
“Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.) “A willful, malicious, and even criminal act may fall within the scope of employment, but only if the act has a ‘causal nexus to the employee’s work.’ ” (M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 129.) “ ‘ “[T]he inquiry should be whether the risk [posed by the employee’s conduct] was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” ’ ” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209.) “Tortious conduct that violates an employee’s official duties or disregards the employer’s express orders may . . . be within the scope of employment.” (Ibid.) Thus, for example, our Supreme Court held that a police officer’s act of raping a woman whom he detained while on duty “was not so divorced from his work that, as a matter of law, it was outside the scope of employment.” (Id. at p. 214.)
Schrubb contends that various defendants were not acting within the scope of their employment in allegedly failing to follow CDCR regulations governing the copying and mailing of his habeas petition. But the defendants were plainly performing the functions of their jobs in responding to Schrubb’s requests to copy and mail his petition. The mere fact they are alleged to have violated CRCR regulations or applied underground regulations does not mean they acted outside the scope of their employment. Here, the alleged actions clearly have the required nexus to the employees’ work to support a legal conclusion that the actions were within the scope of their employment. Schrubb has not alleged any facts, or suggested he can allege any additional facts, that would suggest the defendants’ actions fell outside the scope of their employment.
We conclude that Schrubb’s causes of action are barred by Government Code section 845.4 in the absence of a determination that his confinement is illegal. Not only has Schrubb’s challenge to the legality of his confinement been rejected by every court that has considered his claims, but the federal court specifically rejected his contention that defendants were the proximate cause of the delay in filing his habeas petition, as we explain in the next section.
III. Schrubb is Collaterally Estopped from Relitigating the Cause of the Delay in Filing his Habeas Corpus Petition.
The federal district court that dismissed Schrubb’s federal habeas petition specifically considered and rejected Schrubb’s claim that the delay in filing his habeas petition was attributable to the actions of the defendants. As explained below, Schrubb is precluded from relitigating this issue.
The doctrine of res judicata promotes judicial economy by precluding piecemeal litigation that may occur if a single cause of action is split into more than one lawsuit or if a particular issue has already been decided in an earlier lawsuit. (Mycogen Corp. v. Monsanto Corp. (2002) 28 Cal.4th 888, 897.) In its primary aspect, known as claim preclusion, the doctrine bars a second suit between the same parties on the same cause of action. (People v. Barragan (2004) 32 Cal.4th 236, 252.) In its secondary aspect, known as collateral estoppel or issue preclusion, the prior judgment acts as a “conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” (Id. at pp. 252–253.)
We are concerned here with collateral estoppel, which “applies when (1) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication, (2) there was a final judgment on the merits in the prior action and (3) the issue necessarily decided in the prior adjudication is identical to the one that is sought to be relitigated.” (Roos v. Red (2005) 130 Cal.App.4th 870, 879.)
The requirements of collateral estoppel are satisfied here. First, Schrubb was obviously a party to the federal habeas proceeding that he initiated. Second, there was a final judgment dismissing Schrubb’s federal habeas claim. Third, the issue was necessarily decided and is identical to the issue that Schrubb seeks to relitigate in this action, as we will clarify.
The issue raised by Schrubb in the federal habeas proceeding was whether he was entitled to equitable tolling of the AEDPA deadline to challenge his state court judgment of conviction. As noted, to justify equitable tolling, a litigant must establish both that he pursued his rights diligently and that “some extraordinary circumstances stood in his way.” (Pace, supra, 544 U.S. at p. 418.) The claimed extraordinary circumstance must be the cause of the petition’s untimeliness. (Valverde v. Stinson, supra, 244 F.3d at p. 134.) To support his equitable tolling claim, Schrubb presented the federal district court with the same factual record he alleges in his complaint. The federal court denied the claim, reasoning that Schrubb was informed repeatedly of the requirements to mail his petition and had the means to comply with those requirements within his control.
The issue was necessarily decided by the federal court because that court could not dismiss the habeas petition without first ruling on the merits of Schrubb’s equitable tolling claim. And, for all practical purposes, the issue is identical to an issue that is critical to Schrubb’s complaint in this action. Specifically, in order to establish a claim for interference with his right to challenge the legality of his confinement under Government Code section 845.4, Schrubb must prove that his injury was proximately caused by defendants’ intentional and unjustifiable interference with that right. The federal court’s resolution of the equitable tolling issue resolves the question of the proximate cause of the delay. Indeed, the federal court’s ruling is directly at odds with the claim that the defendants’ actions proximately caused the delay. Under these circumstances, collateral estoppel precludes relitigation of the issue.
Schrubb contends that a judgment in a habeas corpus action may not be given collateral estoppel effect in a subsequent civil action. He is mistaken. A decision denying habeas relief is not res judicata, but collateral estoppel and res judicata have distinct meanings. (Younan v. Caruso (1996) 51 Cal.App.4th 401, 411.) Factual determinations made in a habeas proceeding may be given collateral estoppel effect in a subsequent civil action. (See id. at p. 412.) For example, in Younan v. Caruso, a litigant who was sentenced to prison was barred from pursuing a legal malpractice suit against his trial attorney after his habeas petition alleging ineffective assistance of counsel was denied. (Id. at p. 413.) Although the court acknowledged that the purposes of a habeas proceeding based on ineffective assistance and a legal malpractice claim based on the same conduct “differ greatly,” it nonetheless concluded that a decision finding legal malpractice would be inconsistent with the habeas ruling denying ineffective assistance claims. (Ibid.) The same is true here. A decision that defendants’ actions proximately caused the delay in filing Schrubb’s habeas petition would be inconsistent with the federal court’s determination that the delay was attributable to Schrubb’s own failure to comply with instructions given to him repeatedly. As Schrubb himself acknowledges, the federal court “concluded that the reasons for his petition being late were in his control.”
Schrubb also argues that the judgment dismissing his federal habeas claim as untimely was not a decision on the merits. While it is true that the federal court did not reach the merits of Schrubb’s habeas claim, it did resolve the merits of his equitable tolling claim in its judgment. Indeed, the federal court considered the same factual record Schrubb alleges in his complaint. Because the court necessarily resolved the factual dispute over the cause of the delay in filing Schrubb’s habeas petition, the judgment in the federal habeas proceeding is a final decision on the merits for purposes of giving collateral estoppel effect to the court’s equitable tolling ruling.
IV. Schrubb’s Claim that he was Denied Access to the Courts does not Justify Reversal.
As a final matter, Schrubb claims the court committed reversible error by denying him access to the courts. He first contends that the court failed to rule on his application for an extension of time to file an opposition to the demurrer. He also argues that he had a fundamental right to appear at the hearing. Neither claim has merit.
There is no record that the trial court received Schrubb’s request to extend the time to file his opposition to the demurrer. Consequently, there can be no error on the part of the trial court in failing to rule on a matter that was not before it.
The record on appeal likewise does not support Schrubb’s claim that he was erroneously denied telephone access to appear for the demurrer hearing. As support for his claim, he largely relies on statements and documents outside the record on appeal, which are not properly before us on appeal. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) His claim is that prison officials did not call him to appear by telephone at the appointed time. But his own evidence establishes that he did not submit a request to prison officials to appear telephonically after the hearing was continued to a later date.
In any event, a judgment is generally reversible only if any error or irregularity in the underlying proceeding was prejudicial. (Cal. Const., art. VI, § 13.) Even if we concluded the court erred, we would not reverse unless the error was tantamount to the denial of a fair hearing. (See Cohen v. Herbert (1960) 186 Cal.App.2d 488, 494.) Schrubb cannot establish prejudice because the outcome would have been no different even if he had been granted time to file an opposition or had been allowed to appear telephonically for oral argument. The fact remains that he is collaterally estopped from asserting his causes of action, which are also barred under Government Code section 845.4 because there has been no determination that his confinement is illegal.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs on appeal.
 

_________________________
McGuiness, Acting P.J.*


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.














A143451