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Beitler & Associates Inc. v. Way off Broadway, LLC

California Court of Appeals, Second District, Fourth Division
Sep 17, 2008
No. B202735 (Cal. Ct. App. Sep. 17, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC364258 John Shepard Wiley, Jr., Judge.

Ecoff Law & Salomons, Gary K. Salomons and Lawrence C. Ecoff for Defendants and Appellants.

Levinson Arshonsky & Kurtz, Richard I. Arshonsky and Helen M. Kim for Plaintiff and Respondent.


WILLHITE, J.

Defendants Way Off Broadway, LLC (WOB), et. al., appeal from the trial court’s denial of their petition to compel arbitration of the claims made against them by plaintiff Beitler & Associates, Inc. dba Beitler Commercial Realty Services (plaintiff). We reverse, and direct the trial court to enter a new order granting the petition to compel arbitration.

Besides WOB, the appealing defendants are Samuel R. Falconello, Jr., C2 Pictures, LLC, Cinergi Pictures Entertainment, Inc., Lionstone Cash Flow Office One, LP, Lionstone CFO One Limited Partnership, and Lionstone CFO One GP, LLC.

BACKGROUND

1. The Lawsuit

In January 2007, plaintiff filed a complaint against WOB and several other defendants arising out of a dispute over a real estate listing agreement. According to plaintiff, in October 2003, it entered a listing agreement with WOB pursuant to which WOB gave plaintiff the exclusive right to list for sale certain real property located on South Broadway in Santa Monica. Plaintiff was to receive a commission of 4 percent or 5 percent, depending on the sales price. Before the agreement expired, plaintiff procured a ready, willing, and able buyer, defendant Lionstone Cash Flow Office One, LP (Lionstone). After the agreement expired, WOB encouraged plaintiff to continue its efforts to sell the property. Nonetheless, WOB later entered a purchase and sale agreement for the property with Lionstone that excluded plaintiff from recovering any commission.

Plaintiff’s complaint alleged three causes of action against WOB alone: breach of contract, breach of the implied covenant of good faith and fair dealing, and quantum meruit. It also alleged two other causes of action -- intentional interference with contract and intentional interference with prospective economic advantage -- against WOB and the following other defendants: WOB’s manager, Samuel R. Falconello, Jr.; two commercial tenants of the property, C2 Pictures, LLC, and Cinergi Pictures Entertainment, Inc., which are also affiliates of WOB; Lionstone, which had entered the purchase and sale contract with WOB; and two Lionstone-related companies, Lionstone CFO One Limited Partnership, and Lionstone CFO One GP, LLC.

For ease of reference, we refer hereafter to the all Lionstone companies collectively as “Lionstone.”

Attached to the complaint as an exhibit was a copy of the listing agreement between plaintiff and WOB. The agreement contains an arbitration clause, as follows: “Any dispute that cannot be settled between Owner [WOB] and Broker [plaintiff] regarding this Agreement shall be submitted for arbitration to The American Arbitration Association, whose award shall be final and binding.”

2. The Application for a Writ of Attachment

Concurrently with the complaint, plaintiff filed an ex parte application for a writ of attachment against WOB seeking a lien on the proceeds of the sale of the Santa Monica property. The application was supported by two declarations, one from Wendy Hull, plaintiff’s agent, and the other from Barry Beitler, a principal of plaintiff. Plaintiff alleged that the escrow for the property was scheduled to close the next day (January 4, 2007), and that its commission funds would be dissipated unless a writ of attachment issued. The application sought to attach the sum of $285,000 to cover plaintiff’s commission and costs. In the alternative, plaintiff sought a temporary protective order. In its points and authorities in support of its ex parte application, plaintiff stated that it was “unclear if the underlying claims for commission must be arbitrated and [plaintiff] is reserving its right to arbitration while seeking this writ of attachment.”

The application was assigned to a writ department of the superior court, which issued a temporary protective order permitting the sale to go forward, but compelling the escrow company to hold in escrow $285,000. Later, in February 2007, the writ department denied the application for writ of attachment.

The record on appeal includes plaintiff’s ex parte application for writ of attachment, plaintiff’s points and authorities in support of the application, and the court’s lengthy minute order denying the application. The record does not contain the declarations of Wendy Hull and Barry Beitler that were apparently attached to plaintiff’s points and authorities. Nor does it contain any documents WOB might have filed in opposition to the application or a reporter’s transcript of any hearing on the application.

3. Lawsuit Proceedings Before the Motion to Compel Arbitration

Plaintiff’s lawsuit was assigned to a different department of the superior court than the application for writ of attachment, to which we refer as the trial court. In May 2007, the trial court held a case management conference in conjunction with a hearing on demurrers filed by WOB and codefendant Samuel Falconello. The court overruled the demurrers as to all but one cause of action (breach of the implied covenant of good faith and fair dealing), as to which it sustained the demurrers without leave to amend. Because plaintiff had failed to serve defendants C2 Pictures, LLC, and Cinergi Pictures Entertainment, Inc., the court ordered plaintiff to serve them, and continued the case management conference to June 2007.

On May 31, 2007, WOB, Falconello, and Lionstone filed answers. The record does not reflect whether the scheduled June 2007 case management conference was held. At some point, however, plaintiff filed an amendment adding an additional defendant, Amir Ohebsion (WOB’s transactional attorney), who filed an answer on July 2, 2007. C2 Pictures and Cinergi Pictures did not file an answer until July 13, 2007.

The record on appeal does not contain any amendment naming defendant Ohebsion, but does contain his answer to the complaint.

On August 9, 2007, a case management conference was held with all defendants making an appearance for the first time. Defense counsel (who represented all the defendants) informed the court that his clients were considering seeking to compel arbitration. The court advised him to act quickly, and set the case for trial on December 11, 2007. Lionstone reserved a summary judgment date of November 8, 2007.

4. The Motion to Compel Arbitration

On August 21, 2007, defendants filed a motion to compel arbitration pursuant to the arbitration clause in WOB’s listing agreement with plaintiff. Although only WOB was a signatory to the agreement, the other defendants contended that they were entitled to enforce the arbitration agreement under the principle of equitable estoppel. In their points and authorities, defendants noted that in connection with plaintiff’s application for a writ of attachment, “[d]iscovery was taken by Defendants on issues limited to the litigation of the writ of attachment,” and that “[f]rom and after conclusion of the writ of attachment issue, no party has propounded any discovery.”

Plaintiff opposed the motion to compel arbitration, contending that WOB had waived its right to seek arbitration. Attached to the opposition was a declaration from plaintiff’s attorney, Helen Kim, setting forth the circumstances on which plaintiff based its waiver argument. According to Kim, in January 2007, in connection with the writ of attachment proceeding, WOB deposed witnesses Wendy Hull (plaintiff’s agent) and Barry Beitler (plaintiff’s principal). The transcript of Hull’s deposition is 167 pages long and the transcript of Beitler’s deposition is 79 pages. Despite WOB’s representation to the contrary, Kim declared that in her review of the transcripts, she found no reference to WOB limiting the scope of the depositions to the issues raised by the application for writ of attachment. Further, pursuant to document requests from WOB, Hull and Beitler had produced “almost a banker’s box full of documents.”

Kim also noted the following circumstances in support of plaintiff’s claims that WOB had waived arbitration. WOB had demurred to the complaint, and later filed an answer that failed to assert a right to arbitration. In an August 2007 private mediation, for which plaintiff paid half the costs, WOB did not assert a right to arbitration. Before the August 2007 case management conference, defense counsel failed to mention to plaintiff’s attorney any issues relating to arbitration, and not until appearing at the August 2007 case management did defense counsel first mention the possibility of seeking to compel arbitration. At that case management conference, the trial court set the trial for December 11, 2007, and Lionstone reserved a date for a summary judgment motion. To prepare for Lionstone’s anticipated summary judgment motion and the trial, plaintiff served deposition notices and requests for production of documents on defendant Falconello and on a principal of Lionstone. On August 21, 2007, defendants filed their motion to compel arbitration, but did not ask for a stay of the action pending a ruling on the motion. Instead, on September 4, 2007, Kim received objections to the deposition notices and production requests. Kim sent a letter to defense counsel in an attempt to informally resolve the dispute, but received no response. Therefore, on September 6, 2007, she filed an ex parte application to compel the depositions and production of documents that was heard on September 7.

Based on Kim’s declaration, plaintiff argued in its opposition points and authorities that it was prejudiced by WOB’s unreasonable delay in moving to compel arbitration, which resulted in substantial costs to plaintiff, and also because WOB waited until it had conducted “extensive discovery” and participated in a mediation to learn plaintiff’s strategies and defenses.

To defeat the request for arbitration by the nonsignatory defendants, plaintiff argued that because they were not parties to the agreement, they were not entitled to arbitration. Plaintiff also argued arbitration would lead to inconsistent results.

5. The Trial Court’s Ruling

The court heard the motion to compel arbitration on September 24, 2007. The court first stated that its tentative ruling was to deny the motion, because of WOB’s delay and because the discovery conducted by WOB was not limited to issues raised by plaintiff’s application for a writ of attachment. Defense counsel argued that the delay was caused by plaintiff’s failure to serve all defendants, and the necessity of getting all the parties before the court before moving to compel arbitration. He also argued that the discovery taken by WOB was limited to the depositions of the two witnesses whose declarations supported the application for a writ of attachment. The court responded, “[B]ut what you’ve done is gotten to the heart of [plaintiff’s] case.” Defense counsel responded that such discovery was necessary to oppose the writ of attachment, that he had done his best to limit discovery to those issues, and that the production of documents could also have been required in arbitration. The court found that WOB had waived its right to compel arbitration because “in this odd factual situation . . . this attachment proceeding early on . . . gave one side the benefit of discovery.”

DISCUSSION

I. Waiver of Arbitration by WOB

Defendants contend that substantial evidence does not support the trial court’s finding that WOB waived its right to compel arbitration. We agree.

Because of the strong public policy favoring arbitration, “waivers [of the right to arbitration] are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.” (St. Agnes Medical Center v. PacificCare of California (2003) 31 Cal.4th 1187, 1195 (St. Agnes).) “‘In determining waiver, a court can consider “(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.”’ [Citation.]” (St. Agnes, supra, 31 Cal.4th at p. 1196; accord, Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 30-31.)

The critical inquiry is whether the party resisting arbitration has suffered prejudice. “Prejudice typically is found only where the petitioning party’s conduct has substantially undermined this important public policy [of speedy, cost-effective dispute resolution] or substantially impaired the other side’s ability to take advantage of the benefits and efficiencies of arbitration. [¶] For example, courts have found prejudice where the petitioning party used the judicial discovery processes to gain information about the other side’s case that could not have been gained in arbitration [citations]; where a party unduly delayed and waited until the eve of trial to seek arbitration [citation]; or where the lengthy nature of the delays associated with the petitioning party’s attempts to litigate resulted in lost evidence [citation].” (St. Agnes, supra, 31 Cal.4th at p. 1204.)

We review the trial court’s finding of waiver for substantial evidence. (St. Agnes, supra, 31 Cal.4th at p. 1196.) If, however, the evidence is undisputed, and only one inference can be drawn from such evidence, we are not bound by the trial court’s ruling. (Ibid.)

Here, the evidence is essentially undisputed. As a matter of law, it fails to meet plaintiff’s heavy burden of proving WOB waived its right to arbitration.

Plaintiff failed to show the type of prejudice required to support a waiver of arbitration. In the trial court, plaintiff asserted that by deposing Wendy Hull and Barry Beitler, the two witnesses who had supplied declarations in support of the attachment application, and by compelling them to produce documents, WOB had not limited its discovery to the issues raised by the attachment application, and had disadvantaged plaintiff by learning plaintiff’s strategy and defenses in the civil lawsuit. The trial court relied on this showing to find that plaintiff had been prejudiced by WOB’s conduct. But a showing of prejudice based on information obtained in discovery causes prejudice only if the information disclosed would not have been obtained in the arbitration. (St. Agnes, supra, 31 Cal.4th at pp. 1196, 1204.) Plaintiff made no showing as to what information WOB obtained in its attachment discovery, and no showing that such information (whatever it was) would have been unobtainable through arbitration discovery procedures. The bare assertion that WOB’s discovery permitted WOB to learn plaintiff’s strategies and defenses, without more, does not sustain plaintiff’s burden of proving cognizable prejudice so as to support a waiver of WOB’s right to compel arbitration.

This failure of proof is especially acute here, because WOB’s discovery occurred in the attachment proceeding instituted by plaintiff, which was ancillary to plaintiff’s lawsuit. Had plaintiff been successful in that proceeding, the sum of $285,000 belonging to WOB would have been seized until final adjudication of the merits of plaintiff’s lawsuit. (See Lorber Industries v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) WOB obviously was entitled to protect its interests by opposing the attachment.

To obtain an attachment, plaintiff was required to prove, inter alia, “the probable validity of the claim upon which the attachment is based” (Code Civ. Proc., § 485.220, subd. (a)(2)), meaning that it was “more likely than not that the plaintiff will obtain a judgment against the defendant on that claim” (Code Civ. Proc., § 481.190). The claim upon which plaintiff sought a writ of attachment was WOB’s alleged breach of the listing agreement, based on the same facts underlying plaintiff’s civil complaint against WOB and the other defendants. The witnesses upon whom plaintiff relied were Wendy Hull (plaintiff’s agent) and Barry Beitler (plaintiff’s principal), the only two persons whom WOB deposed and from whom it sought documents. Thus, it was inevitable that both WOB’s discovery and the evidence presented in the attachment proceeding would significantly overlap with the issues raised by plaintiff’s lawsuit.

Indeed, although on appeal we do not have the full record of the attachment proceeding, we do have the lengthy, seven page minute order denying the attachment. The ruling describes plaintiff’s evidence in detail, and exposes several asserted flaws in plaintiff’s evidence and reasoning. Plaintiff fails to explain how, in light of the nature of the attachment proceeding, WOB learned anything about plaintiff’s case except what plaintiff presented to prove the probable validity of its claims, and what WOB was entitled to learn to dispute those claims.

For instance, the ruling states that although the Santa Monica property “was sold years after the date found in the written [listing] agreement and extension, plaintiff argues the continuing conduct of defendant provides a basis for a determination that the contract remained viable.” The ruling recounts the declaration of Wendy Hull, plaintiff’s primary witness, and the “numerous communications between Ms. Hull, [WOB], and potential sellers which evidences her continuing activity regarding the property after the expiration of the written agreement.” The ruling analyzes, among other issues, the parties’ contentions as to whether WOB waived the time limitations of the agreement, whether Hull (who had left WOB’s employ) continued to act on WOB’s behalf, and whether plaintiff effectively invoked a clause in the agreement that would obligate WOB to pay a commission after termination of the agreement.

The only evidence plaintiff offered in the trial court on the point was the declaration of its attorney, Helen Kim. Kim stated merely that in her review of the deposition transcripts she “did not see any reference to WOB limiting the scope of the deposition[s] to the attachment matters,” and that Hull and Beitler “produced almost a banker’s box full of documents to WOB.” That there was no reference to limiting the scope of the depositions, however, is insufficient to show that the depositions were not so limited. More importantly, there was no showing how the deposition testimony or the nearly full “banker’s box” of documents disclosed anything extraneous to the attachment issues that might give WOB an unfair advantage in arbitration.

In short, to the extent WOB’s defending itself in the attachment proceeding might have undermined the benefits and efficiencies of arbitration (St. Agnes, supra, 31 Cal.4th at p. 1204), that result was caused by plaintiff’s decision to invoke the provisional remedy of attachment in the first place.

The evidence also does not support a finding that defendants unreasonably delayed in seeking to compel arbitration. Plaintiff filed its lawsuit in January 2007, but by May 2007 still had not served defendants C2 Pictures, LLC, and Cinergi Pictures Entertainment, Inc. At the May 2007 case management conference, the trial court ordered plaintiff to serve these defendants. At some point, plaintiff also apparently filed an amendment to add defendant Amir Ohebsion. The first time all defendants were properly before the court was at the August 9, 2007 case management conference, when the trial court first set a trial date, and defense counsel (who represented all defendants) informed the court that his clients were considering a motion to compel arbitration. Defendants then filed their motion to compel arbitration less than two weeks later on August 21, 2007.

As a matter of law, defendant’s delay in seeking to compel arbitration was not unreasonable. It would have made little sense for WOB to move to compel arbitration for itself alone, before all defendants had appeared in the action, especially since plaintiff was taking the position that the other defendants could not take advantage of WOB’s arbitration agreement with plaintiff. The most reasonable course of action was the one WOB and its codefendants took – a single motion to compel arbitration on behalf of all defendants, to be heard in a single proceeding once all defendants were properly served.

We note, too, that plaintiff cannot claim that it was misled as to the existence of its arbitration clause in its listing agreement with WOB or of the possibility that its claims were covered by the arbitration clause. Plaintiff attached a copy of the listing agreement (including the arbitration clause) to its complaint, and in its application for a writ of attachment expressly reserved its own right to compel arbitration.

It is true that before moving to compel arbitration, WOB and Falconello filed demurrers to the complaint. It is also true that the parties engaged in private mediation, that Lionstone reserved a date for a summary judgment motion should arbitration be denied, that plaintiff propounded discovery on defendants Falconello and Lionstone, and that plaintiff later sought an ex parte order compelling compliance with those discovery requests. But WOB’s mere participation in the litigation (along with Falconello and Lionstone) is not adequate to find a waiver. (St. Agnes, supra, 31 Cal.4th at p. 1203; see Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1198 [series of demurrers insufficient to constitute waiver of arbitration].) Further, plaintiff fails to identify any prejudice from these events except, possibly, economic costs (which it fails to substantiate). But “courts will not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses.” (St. Agnes, supra, 31 Cal.4th at p. 1203.)

On this undisputed record, we conclude that the evidence is insufficient to support the trial court’s finding that plaintiff sustained its heavy burden of showing WOB waived its right to compel arbitration.

II. The Nonsignatory Defendants

Plaintiff contends that because only WOB is a party to the listing agreement, the other defendants cannot compel arbitration. We disagree.

“[U]nder both federal and California decisional authority, a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are ‘intimately founded in and intertwined’ with the underlying contract obligations. [Citations.] By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, a plaintiff may be equitably estopped from repudiating the arbitration clause contained in that agreement. [Citation.] The focus is on the nature of the claims asserted by the plaintiff against the nonsignatory defendant. [Citations.] That the claims are cast in tort rather than contract does not avoid the arbitration clause.” (Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 271-272 (Boucher); see also Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1286-1287 (Rowe); Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, 833 (Turtle Ridge); Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1716-1717 (Metalclad).)

Here, plaintiff sues the nonsignatory plaintiffs for intentional interference with contract and intentional interference with prospective economic advantage. WOB is also a defendant in these claims. The contract with which the nonsignatory defendants allegedly interfered is the listing agreement. The prospective economic advantage that they allegedly interfered with is the commission owed under the listing agreement. The nonsignatory defendants whom plaintiff sues are persons or entities related to WOB (defendants Falconello and Ohebsion, WOB’s manager and transactional attorney, respectively, and defendants C2 Pictures, LLC, and Cinergi Pictures Entertainment, Inc., tenants of the property and affiliates of WOB), and the party, Lionstone, with whom WOB allegedly agreed to exclude plaintiff from any commission. Because plaintiff’s claims against the nonsignatory defendants “are ‘intimately founded in and intertwined’ with” WOB’s obligation under the listing agreement to pay a commission, plaintiff is equitably estopped to avoid arbitration of his claims against the nonsignatory defendants. (Boucher, supra, 127 Cal.App.4th at pp. 272-273; see Rowe, supra, 153 Cal.App.4th at p. 1288.)

Plaintiff contends that its arbitration agreement with WOB provides only that “dispute[s] . . . between Owner [WOB] and Broker [plaintiff] regarding this Agreement shall be submitted for arbitration.” Plaintiff notes that in other decisions applying equitable estoppel, the arbitration agreement applied, in substance, to any claim or dispute arising out of the contract. (See Boucher, supra, 127 Cal.App.4th at p. 266; Metalclad, supra, 109 Cal.App.4th at p. 1710; see also Turtle Ridge, supra, 140 Cal.App.4th at pp. 831-832; Rowe, supra, 153 Cal.App.4th at p. 1280.) According to plaintiff, here “no agreement was made that [plaintiff] and WOB [would] arbitrate any and all claims related to the Listing Agreement, just claims between [plaintiff] and WOB.”

Plaintiff posits a distinction without a difference. In all cases in which equitable estoppel applies, the signatory parties have agreed to arbitrate only claims against each other. Here, plaintiff’s claims for intentional interference with contract and with prospective economic advantage against WOB are encompassed by the language of the arbitration agreement relating to disputes “regarding this Agreement.” The question for determining application of equitable estoppel is whether plaintiff, being obligated to arbitrate those claims against WOB, can avoid arbitration on the same claims against the nonsignatory defendants. Because the claims asserted against the nonsignatory defendants are intimately tied to the contract which compels arbitration against WOB, plaintiff is equitably estopped to disavow arbitration against the nonsignatories. (See Rowe, supra, 153 Cal.App.4th at p. 1288; Turtle Ridge, supra, 140 Cal.App.4th at pp. 833-834; Boucher, supra, 127 Cal.App.4th at p. 272; Metalclad, supra, 109 Cal.App.4th at pp. 1713-1714.)

Similarly misplaced is plaintiff’s contention that equitable estoppel does not apply because plaintiff is not asserting any rights under the listing agreement against the nonsignatory defendants, or seeking any benefits under that agreement against them. Equitable estoppel does not require that the signatory plaintiff seek to enforce specific contractual rights or benefits against nonsignatories, but rather only that the claims against the nonsignatories be closely intertwined with the contractual obligations of the signatory. (See, e.g., Turtle Ridge, supra, 140 Cal.App.4th at p. 834; Boucher, supra, 127 Cal.App.4th at p. 272.) Here, plaintiff’s claims against the nonsignatories arise from the contractual obligation of the signatory, i.e., on the enforceability of WOB’s obligation to pay a commission under its listing agreement with plaintiff. “Claims [against nonsignatories] that rely upon, make reference to, or are intertwined with claims under the subject contract are arbitrable.” (Rowe, supra, 153 Cal.App.4th at p. 1287.) Plaintiff’s claims against the nonsignatory defendants are precisely the type to which the doctrine of equitable estoppel applies.

DISPOSITION

The order denying the petition to compel arbitration is reversed. The trial court is directed, upon issuance of the remittitur, to enter a new order granting the petition to compel arbitration. Defendants shall recover their costs on appeal.

We concur: EPSTEIN, P. J., MANELLA, J.


Summaries of

Beitler & Associates Inc. v. Way off Broadway, LLC

California Court of Appeals, Second District, Fourth Division
Sep 17, 2008
No. B202735 (Cal. Ct. App. Sep. 17, 2008)
Case details for

Beitler & Associates Inc. v. Way off Broadway, LLC

Case Details

Full title:BEITLER & ASSOCIATES, INC., Plaintiff and Respondent, v. WAY OFF BROADWAY…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 17, 2008

Citations

No. B202735 (Cal. Ct. App. Sep. 17, 2008)