Opinion
A147144
12-19-2017
FERNANDO BARBOZA, Plaintiff and Appellant, v. WEBCOR CONSTRUCTION L.P., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14737311)
I.
INTRODUCTION
Appellant Fernando Barboza appeals the trial court's award of summary judgment in favor of his former employer, Webcor Construction L.P. Barboza alleged employment discrimination based upon his termination three months after a workplace injury. The trial court properly found, based on the undisputed evidence, that Barboza could not prevail on his claims under the California Family Rights Act (CFRA) or the California Fair Employment and Housing Act (FEHA). We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Barboza was a journeyman laborer for Webcor. He worked for them from 2006 to 2007, 2010 to 2011, and 2012 to 2013. In his most recent position, he did concrete work for the One Rincon Hill Phase II project (the Rincon project) in San Francisco. On the current job, he did not pour or smooth the concrete, but did the stripping and clean up including dismantling the concrete forms. On February 5, 2013, Barboza was struck in the shoulder by a falling four-by-four-inch piece of plywood. Joe Villela, the site safety manager, found Barboza sitting on a material cart and he took him to the hospital.
The initial medical report from Saint Francis Health Center (St. Francis) stated that Barboza was wearing a hard hat, but was "stunned" when hit. He suffered no loss of consciousness. The Webcor incident report stated Barboza had a head contusion, cervical strain, and right-hand contusion. He was released to return to modified work on February 5, 2013. The St. Francis physician instructed Barboza to take Advil and apply ice. He was restricted to lifting no more than 10 pounds, and pushing or pulling no more than 30 pounds for the next week.
The workers' compensation manager for Webcor, Danielle DiRicco, stated that Barboza never requested leave or accommodation. Barboza was instructed to do modified duty from February 5 to 12, 2013. Barboza signed a "Return-to-Work Program" agreement that indicated he would be on modified duty for one week.
However, on February 6, 2013, Barboza initially requested time off from Villela, but Villela told him he was cleared for modified duty and should return to work. When he returned to work on February 6, Barboza was given modified duties including cleaning the bathroom, mopping, vacuuming, and cleaning windows. Barboza described it as "easy" work.
Barboza returned to St. Francis on February 11 and 12, 2013, for reexamination. On February 12, Barboza was medically cleared to return to work as a concrete laborer with no restrictions. The "Occupational Health Work Status Progress Report" stated that Barboza had no permanent disability and no future treatment was needed.
Barboza's workers' compensation claim was closed on February 12, 2013, because he was discharged from the care of a doctor and did not require further medical treatment. DiRicco testified that if an employee cannot perform the modified duties recommended by a physician, the employee needs to return to the doctor to change the restrictions. If Barboza had informed her that he was still in pain, she would have reopened the claim and sent him to receive additional treatment. If an employee wanted to request leave under the CFRA, he would need to inform human resources of his need to take the leave. Webcor would then determine if he had worked the minimum required number of hours in the preceding 12 months.
After February 12, 2013, and until his termination, Barboza never sought healthcare treatment for his injuries from the February 5 accident.
After Barboza's return to regular work, he continued to have headaches and to take ibuprofen. He was able to perform the lighter duties of his job. He told his supervisors, Manuel Gonzales and Jose Vidauri, that he was experiencing headaches. Barboza never told them he could not perform the lighter duties, but would tell them if he could not do heavier work. Barboza testified that he would tell his supervisor when he could not do something and they would assign the task to another worker.
Barboza was terminated on May 10, 2013. Greg Miller, the senior superintendent at the Rincon project, made the decision to reduce the workforce. The field foreperson, Jose Vidauri, created the list of names for the layoffs. Vidauri testified that when he is instructed to lay off people, he keeps "the people that help me out the most, in terms of jobs that are the hardest." He stated that Barboza was not one of those people and he could not do stripping or lifting material with a crane.
Dave Casetta, lead carpenter foreman and acting project superintendent for the Rincon project, stated in his declaration that beginning in May 2013, "available work for concrete laborers at the job site decreased as the project began winding down. There were more laborers than work available." He stated it was not feasible to keep Barboza on the job site because there was no available work for him. At the time of his dismissal, Casetta was unaware Barboza suffered from any medical condition.
In her declaration, the senior human resources manager for Webcor stated that at the Rincon project there was an overall reduction of 10 laborers from April 1 to August 1, 2013. Webcor transitioned from 60 to 49 laborers. Between May 2013 and August 2014, Webcor terminated 7 laborers and hired 5 laborers across projects.
Miller testified 7 laborers were let go between May 10, 2013, and August 29, 2014, 6 of them from concrete work. During the same timeframe, 5 concrete laborers were hired or rehired.
Barboza filed a complaint alleging five causes of action: violation of CFRA, disability discrimination under FEHA, specifically Government Code section 12940, subdivision (a), failure to provide reasonable accommodation under section 12940, subdivision (m), failure to engage in an interactive process under section 12940, subdivision (n), and wrongful termination under section 12945.2.
All subsequent references are to the Government Code unless otherwise identified.
Webcor filed a motion for summary judgment, arguing that Barboza's claims failed as a matter of law because: (1) Barboza never requested leave under the CFRA, (2) Webcor made accommodation for Barboza's injury, and (3) there was no connection between his injury and his termination.
Barboza submitted medical evaluations by Dr. Vatche Cabayan conducted post-termination in 2014 and 2015. In March 2014, Dr. Cabayan reported that Barboza complained of neck pain, lower back pain, and headaches. In his July 2014 report, Dr. Cabayan stated that Barboza had bulging discs at C6-C7 and L4-L5 and showed signs of disc disease. He also suffered from high blood pressure and depression. "Neurologically, he has no evidence of long term signs. He has good strength." In an April 2015 report, Dr. Cabayan stated: "The patient can do work avoiding repetitive reaching above shoulder level; forceful pushing, pulling or working overhead; or keeping neck still, prolonged bending, prolonged standing and walking."
In March 2014, Barboza also saw a chiropractor, Moses Jacob, who diagnosed his condition as "permanent and stationary" suitable for disability.
After issuing a tentative ruling, the trial court held a hearing on the summary judgment motion. Barboza's counsel argued Barboza suffered from a disability and cited to the reports from treating physicians after Barboza was terminated. Counsel argued there was a triable issue of fact as to whether Barboza was disabled and could perform the essential functions of his job. Webcor's counsel argued that Barboza was released to return to regular work duties after February 12, 2013, and Webcor had no information about any continuing disability.
The trial court granted Webcor's motion for summary judgment. In granting summary judgment on the first cause of action, the court found undisputed evidence showed that Barboza performed modified duty from February 5 to 12, 2013, and then was cleared to return to work with no restrictions. Under the CFRA, a serious health condition includes a period of incapacity of more than three calendar days, treatment two or more times by a health care provider, or treatment that requires continuing treatment. From February 12, 2013, until plaintiff was laid off on May 10, 2013, "the undisputed evidence shows that defendant did not know and/or was not on notice that plaintiff had a serious health condition."
For the second, third and fourth causes of action under section 12940, the court found the "the undisputed evidence does not show that plaintiff's alleged impairment constituted a disability according to the statutory definition." In addition, the evidence showed that Webcor accommodated Barboza's disability to the extent it knew of any such disability. The court granted summary adjudication of the fifth cause of action because the undisputed evidence showed that Webcor had a non-pretextual legitimate business reason for termination of Barboza's employment. The court entered judgment dismissing the complaint with prejudice.
III.
DISCUSSION
A. The Trial Court Properly Granted Summary Judgment of Barboza's Claims
1. Standard of Review
"A defendant moving for summary judgment or summary adjudication may demonstrate that the plaintiff's cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action. [Citations.]" (Ram's Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1078; Code Civ. Proc., § 437c, subds. (f)(2), (p)(2).) This showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar).)
If the defendant meets the threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of material fact exists as to that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.)
In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the trial court concludes there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, then it must grant the defendant's summary judgment motion. (Code Civ. Proc., § 437c, subd. (c).)
We review an order granting summary judgment de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We independently examine the record to determine whether a triable issue of material fact exists. (Saelzler, supra, 25 Cal.4th at p. 767.) " 'We will affirm a summary judgment if it is correct on any ground, as we review the judgment, not its rationale.' (Overstock.com, Inc. v. Goldman Sachs & Co. (2014) 231 Cal.App.4th 513, 528[-529], fn. 10.)" (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.)
2. Barboza Failed to Establish a Violation of the CFRA
"The CFRA applies to companies with 50 or more employees; it allows an employee up to 12 weeks of unpaid 'family care and medical leave' if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. (§ 12945.2, subd. (a).)" (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 208.) An employee may take leave for a serious health condition that makes the employee unable to perform the functions of the employee's job. (Ibid; § 12945.2, subd. (c)(3)(C).)
The CFRA defines a "[s]erious health condition" as "an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A) Inpatient care in a hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or continuing supervision by a health care provider." (§ 12945.2, subd. (c)(8).) "Inpatient care" means "a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity. A person is considered an 'inpatient' when a health care facility formally admits him or her to the facility with the expectation that he or she will remain at least overnight and occupy a bed . . . ." (Cal. Code Regs., tit. 2, § 11087, subd. (q)(1).) "Continuing treatment" means "ongoing medical treatment or supervision by a health care provider . . . ." (Id. at subd. (q)(3); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 601 (Soria).)
"Federal regulations interpreting the Family and Medical Leave Act of 1993 apply to CFRA definitions when not inconsistent with them. (Cal. Code Regs., tit. 2, § 11087.)" (Soria, supra, 5 Cal.App.5th at p. 602, fn. 9.)
A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
"(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
"(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
"(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider." (29 C.F.R. § 825.115.)
A claim under the CFRA requires both three or more consecutive days of incapacity and continuing treatment by a healthcare provider. First, the undisputed evidence showed that Barboza did not have three or more consecutive days of incapacity. He returned to work the day after his injury on February 5, 2013.
Second, the undisputed evidence showed that Barboza's injury was not considered a serious medical condition as defined under the CFRA. Barboza suffered from two contusions and a cervical strain. His primary complaint was a headache and ongoing back pain. (See Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 8 [common ailments such as non-migraine headaches are excluded from the CFRA].) The doctor prescribed Advil and ice for his injuries and placed restrictions on lifting and pushing during a one-week period. The St. Francis doctor authorized him to return to work the day after he was injured with a modified work schedule, and then cleared him to return to regular work after one week. The "Occupational Health Work Status Progress Report" stated that Barboza had no permanent disability and no future treatment was needed.
Third, the evidence was also undisputed that Barboza did not receive continuing treatment from a health care provider after February 12, 2013, when he was released to return to his regular work duties. To support his opposition to summary judgment, Barboza presented evidence from a doctor and a chiropractor who he consulted after his discharge. Barboza's medical condition months or years after termination is irrelevant to his CFRA claim. Even if we credit Barboza's statements that he informed his supervisors of his ongoing headaches and neck pain, his complaints do not rise to the level of a violation of the CFRA. Neither his supervisor nor management at Webcor was provided medical information that demonstrated Barboza was entitled to medical leave under the CFRA. The only information Webcor had was that Barboza had been cleared to return to his regular duties after February 12, 2013, after his last visit at St. Francis.
Finally, the undisputed evidence shows that Barboza never requested leave under the CFRA. According to his testimony, Barboza requested leave the morning after his injury on February 5, 2013, and Villela originally said he would allow it. Villela then denied the request because Barboza had signed the return to work form and was medically cleared to do modified work that week. Barboza reported to work and performed the work, which he described as "easy." To "request CFRA leave an employee 'shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA'[.]" (Soria, supra, 5 Cal.App.5th at p. 602.) After returning to work on February 5, 2013, Barboza did not request leave from Webcor.
The trial court properly granted summary adjudication of Barboza's CFRA claim.
3. Barboza Failed to Establish Disability Discrimination under FEHA
In his claim brought under the FEHA for disability discrimination, Barboza alleged that Webcor engaged in unlawful employment practices by ignoring his request for medical leave, refusing to provide reasonable accommodation and failing to engage in an interactive process.
To establish a prima facie case for discrimination, a plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
The trial court found that Barboza failed to establish he suffers from a disability: "[T]he undisputed evidence does not show that plaintiff's alleged impairment constituted a disability according to the statutory definition." Furthermore, the evidence showed that Webcor accommodated Barboza's disability to the extent it knew of any such disability.
In Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1243 (Avila), the court found that Avila "failed to raise a triable issue as to whether the Continental employees who made the decision to discharge him knew of his alleged disability at the time they made that decision." To prevail on summary judgment, Continental was required to show either that Avila could not establish one of the elements of a FEHA claim or that there was a legitimate, nondiscriminatory reason to terminate him. (Avila, at p. 1247.) Continental submitted evidence that the individuals responsible for Avila's discharge did not know he suffered from a disability (pancreatitis). (Ibid.) Avila submitted medical forms regarding his hospitalization and evidence he told numerous co-workers about his pancreatitis. (Ibid.) Avila submitted two forms from Kaiser hospital: the first form stated he was unable to work for one day, and the second form stated he had been hospitalized and was unable to work for five days. (Id. at p. 1248.) The trial court found the forms were insufficient to raise a triable issue of fact because they did not identify that Avila had a disability. (Ibid.) The Second District concluded: "The Kaiser forms did not contain sufficient information to put Continental on notice that plaintiff suffered from a disability." (Id. at p. 1249, fn omitted.) "From Continental's point of view, the fact that plaintiff was hospitalized for only three days and then returned to work days later without restrictions or accommodations is consistent with the conclusion that plaintiff did not suffer from a condition that qualifies as a disability." (Ibid.) There is similarly a difference between Avila's supervisors knowing he was sick and knowing he was disabled. (Ibid.)
Like Avila, Barboza's failed to present evidence raising a triable issue of fact. He failed to demonstrate that he suffered from a disability and that his supervisors were aware of it. The fact that Barboza continued to suffer from headaches and back pain does not qualify as a disability. "Pain alone does not always constitute or establish a disability. [Citations.]" (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 348.) Barboza suffered contusions on his head and wrist and a neck sprain, which limited his ability to do his regular work for one week. After that seven-day period, he was released to return to his regular work duties.
Additionally, there was no evidence Barboza's supervisors were aware he suffered from a disability before he was terminated. Even accepting Barboza's deposition testimony that he repeatedly told his supervisors he had headaches, these did not qualify as a disability. From the perspective of Barboza's supervisors, Barboza attended work every day after the accident and had been cleared to return to regular work by a doctor. To the extent Barboza's pain limited his ability to perform his job, he testified it was treatable with Ibuprofen and when he felt he was unable to perform a task, his supervisors reassigned it—to accommodate him.
Barboza's post-termination medical evidence is simply not relevant. "Evidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiff's disability when he or she made the decision. Such evidence is irrelevant to determining whether the decision maker acted from a discriminatory animus. [Citations.]" (Avila, supra, 165 Cal.App.4th at p. 1251, italics omitted.) Furthermore, Dr. Cabayan never concluded Barboza had a disability. He stated: "Neurologically, he has no evidence of long term signs. He has good strength." In an April 2015 report, Dr. Cabayan stated: "The patient can do work avoiding repetitive reaching above shoulder level; forceful pushing, pulling or working overhead; or keeping neck still, prolonged bending, prolonged standing and walking." The only mention of Barboza suffering from a disability was in chiropractor Moses Jacobs' March 2014 report that diagnosed his condition as "permanent and stationary" suitable for disability.
Furthermore, Webcor did not violate Barboza's rights to accommodation and an interactive process because he failed to notify them or document a disability. " '[T]he interactive process of fashioning an appropriate accommodation lies primarily with the employee.' [Citation.] An employee cannot demand clairvoyance of his employer. [Citation.] ' "[T]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge." ' [Citation.] 'It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.' [Citation.]" (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443 (King).)
In King, a long-time UPS employee was terminated and claimed it was due to a disability, a blood disorder. (King, supra, 152 Cal.App.4th at p. 432.) The court concluded it was "undisputed that plaintiff's doctor released him to perform 'his regular duties and regular hours.' " (Id. at p. 443.) The trial court found that the " 'physician's note did not contain any specific restrictions, and plaintiff never requested nor provided to UPS a doctor's note limiting the number of hours he could work in a day. [Citation.] Nor did plaintiff ever inform his supervisor, Vix, or human resources that he was not able to work the hours he had previously worked. [Citation.]' " (Ibid.) The appellate court held that although plaintiff "describes in painful detail how poorly he felt, he simply does not establish that he communicated his distress to his supervisors or made the kind of specific request for a modified work schedule required to trigger an employer's duty to provide accommodation." (Id. at p. 444.) "We agree with the trial court that plaintiff has not sustained his burden of demonstrating a genuine issue of material fact given his failure to get additional clarification from his doctor to specifically restrict his hours and to communicate his limitations to his supervisors." (Ibid.)
Like the plaintiff in King, Barboza was released to return to his regular duties one week after the accident. The St. Francis physician did not place any restrictions on his ability to work after February 12, 2013. Like King, Barboza complained of feeling poorly from headaches and back pain, but he did not request accommodation. Nevertheless, to the extent, Barboza informed his supervisors he could not perform specific tasks, they accommodated him and assigned the work to other laborers. Barboza testified that he was "happy" with how Webcor handled the situation. The trial court correctly concluded that Barboza failed to sustain his burden of a triable issue of fact given his failure to provide additional medical documentation and communicate any need for accommodation to Webcor. (King, supra, 152 Cal.App.4th at p. 444.) Barboza failed to provide sufficient information to warrant an interactive process and formal accommodation. (See id. at p. 443; Alejandro v. ST Micro Electronics, Inc. (N.D. Cal. 2016) 178 F.Supp.3d 850, 863 (Alejandro) ["The FEHA does not hold Defendant responsible for Plaintiff's failure to communicate essential information to Defendant."].)
Lastly, Webcor was entitled to summary judgment as to Barboza's FEHA cause of action because there was no showing of discriminatory intent. (See Guz, supra, 24 Cal.4th at p. 355.) " 'An adverse employment decision cannot be made "because of" a disability, when the disability is not known to the employer.' (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 . . . ; see also Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046 . . . [no FEHA retaliation claim 'where there is no evidence the employer knew' that the employee was engaging in protected conduct]; Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1145 . . . ['An employee cannot make out a prima facie case of discrimination based on pregnancy under FEHA in the absence of evidence the employer knew the employee was pregnant']; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [' "Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity." '].)" (Avila, supra, 165 Cal.App.4th at pp. 1246-1247.)
4. Barboza Failed to Establish Wrongful Discharge
In his complaint, Barboza alleges wrongful discharge in violation of public policy under section 12940, and in violation of section 12945.2 for attempting to exercise his rights under the CFRA. The court granted summary adjudication of the wrongful termination cause of action because the undisputed evidence showed that Webcor had a non-pretextual legitimate business reason for terminating Barboza's employment.
Barboza attempts to create a triable issue of fact by referencing Webcor's hiring and firing statistics. His analysis does not distinguish between laborers generally and concrete laborers specifically. The undisputed evidence showed that Webcor discharged 7 laborers between May 10, 2013, and August 29, 2014, and 6 of those workers were concrete laborers. While it is true that Webcor hired or rehired 5 concrete workers during the same time frame, there was no evidence presented as to the skill sets of those workers or whether they were short-term hires. Furthermore, the acting superintendent on the project testified that available work for concrete laborers decreased as the project began winding down. He testified that he was unaware Barboza had any medical condition when he was discharged, and at the time of Barboza's dismissal Webcor did not have available concrete work for him.
However, we need not reach the issue of Webcor's legitimate nondiscriminatory reason for discharging Barboza because as detailed above, he failed to present a prima facie case that he suffered from a disability. Because we conclude that the trial court properly granted summary adjudication of Barboza's CFRA and FEHA claims, Barboza has not shown his termination was in violation of public policy. (See Alejandro, supra, 178 F.Supp.3d at p. 863.) Under California law, if an employer did not violate FEHA, the employee's claim for wrongful termination in violation of public policy necessarily fails. (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 272-273, superseded by statute on another point in Alch v. Superior Court (2004) 122 Cal.App.4th 339, 396-397.) An employee must have a viable claim for a violation of CFRA to state a claim for wrongful termination in violation of public policy. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 885.)
IV.
DISPOSITION
The judgment is affirmed. In the interests of justice, each party is to bear his, or its, own costs.
/s/_________
RUVOLO, P. J. We concur: /s/_________
KENNEDY, J. /s/_________
RIVERA, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------