Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment and order of the Superior Court of Los Angeles County No. GC036764. Joseph F. DeVanon, Judge; C. Edward Simpson, Judge.
Law Offices of Peter L. Clinco, Law Offices of Victoria R. Pearson, Peter L. Clinco and Glenn H. Johnson for Defendant and Appellant.
Nossaman, Guthner, Knox & Elliott, Winfield D. Wilson, Michael Heumann; Howard & Howard Attorneys and Jeffrey G. Sorenson for Plaintiff and Respondent.
DOI TODD, J.
Defendant and appellant Rusnak Daimler Chrysler Center, Inc. (Rusnak Chrysler) appeals following a grant of summary adjudication and award of attorneys’ fees in favor of plaintiff and respondent Chrysler Realty Company, LLC (Chrysler Realty). The trial court ruled that Chrysler Realty was entitled to summary adjudication on its cause of action seeking specific performance of an option agreement. We reverse. Chrysler Realty failed to meet its burden to establish that there was no triable issue of material fact as to whether the right to exercise the option was triggered.
FACTUAL AND PROCEDURAL BACKGROUND
In the 1960’s, the predecessor to Chrysler Realty bought and built the dealership improvements at the property located at 2965 East Colorado Boulevard in Pasadena (the premises). In September 1997, Chrysler Realty sold the premises to Rusnak Chrysler. The parties simultaneously entered into an option agreement granting Chrysler Realty the right to repurchase or lease the premises if Rusnak ceased the business of operating a Chrysler franchise on the premises (option agreement). The option agreement’s recitals set forth the significance of the agreement, providing that “Seller hereby states and Buyer and Lender hereby acknowledge that Seller would not, under any circumstances, convey the premises to Buyer without certain rights and options and upon certain terms and conditions as contained and set forth herein . . . .”
The original option agreement was between Chrysler Realty, which converted from a Delaware corporation to a Delaware limited liability company in December 2003, and Pasadena Chrysler Plymouth Inc., which changed its corporate name to Rusnak DaimlerChrysler Center, Inc., doing business as Rusnak Chrysler Jeep Dodge, in October 2001.
Relevant here, one of the Seller’s rights was that “[t]he Seller shall have the option to lease the premises should any one (1) of the events as set forth in Paragraph 1 hereof occur during the twenty-five (25) year period commencing with the date of this Agreement.” The events listed in paragraph one of the option agreement included: “(a) Should Buyer of the corporation which has entered into a Direct Dealer Agreement with Chrysler Corporation . . . fail to occupy the premises, for any reason, for the primary purpose of selling and servicing Chrysler Corporation products pursuant to and under the terms of the Direct Dealer Agreement . . . . [¶] (b) Should the existing Direct Dealer Agreement dated January 15, 1991 between Pasadena Chrysler Plymouth, Inc. and Chrysler Corporation terminate for any reason whatsoever; [¶] . . . [¶] (g) Should the premises be used for a purpose other than performing the obligations and functions required or contemplated by the dealer agreement(s) then in effect between Buyer and Chrysler Corporation . . . .”
The option agreement required Rusnak Chrysler to notify Chrysler Realty of one of the paragraph one events within 10 days of its occurrence and further allowed Chrysler Realty 60 days thereafter to exercise its option to repurchase or lease the premises. In the event that Chrysler Realty exercised its lease option, the option agreement required the parties to enter into a lease agreement—the format of which was attached to the option agreement—within 15 days. If the lease exercise occurred within the first 15 years of the option agreement, the parties agreed that the annual rental amount would be 11 percent of the specified repurchase price of $2,720,000 plus a percentage of the cost of improvements.
In January 2005, Rusnak Chrysler and DaimlerChrysler Motors Company LLC (DaimlerChrysler) entered into a dealer participation agreement to enable Rusnak Chrysler to sell Dodge Sprinter vehicles (participation agreement). In order to enter into a participation agreement, DaimlerChrysler required that the dealer have an existing sales and service agreement or direct dealer agreement with it.
By letter dated January 11, 2006, Rusnak Chrysler notified DaimlerChrysler that it was terminating its Chrysler, Jeep and Dodge franchises effective February 28, 2006. The letter indicated that DaimlerChrysler’s actions were the reason for the termination. On behalf of Rusnak Chrysler, Paul Rusnak (Rusnak) wrote: “Twelve years ago, against my strongest protest, Chrysler Motors opened a Chrysler Plymouth Jeep dealership in Alhambra, California, just 4.5 miles from my Pasadena Chrysler Plymouth Jeep location. This decision proved to be disastrous to the profitability of the Pasadena dealership because it overburdened an already challenged market. Since that time, neither Alhambra nor my dealership have been profitable and caused the loss of all my dealership’s retained earnings, accumulated since 1966. Additionally, in 2005 we have suffered a further loss of $1,600,000.00. [¶] In an effort to correct this over-dealerization blunder made by Chrysler Motors, the Alhambra dealer was willing to step away if DaimlerChrysler agreed to rescind his lease. DaimlerChrysler refused to close the point, and then added insult to injury by awarding additional franchises in the San Gabriel Valley without notifying all the existing dealers. [¶] . . . [¶] . . . . These irresponsible and devastating actions leave me no alternative but to submit my notice of termination of the Chrysler, Jeep and Dodge franchises, effective February 28, 2006.”
On March 1, 2006, Chrysler Realty notified Rusnak Chrysler in writing that it was exercising its option to lease the premises, and enclosed copies of a proposed lease agreement. Rusnak Chrysler responded immediately through its attorney, who wrote “[a]t this time my client does not concede nor accept that this option is valid.” Rusnak Chrysler declined to execute the lease agreement.
Chrysler Realty filed a verified complaint against Rusnak Chrysler and Rusnak in March 2006 and a first amended complaint in June 2006, seeking specific performance, a temporary restraining order, a preliminary and permanent injunction and damages under a personal guarantee. At the same time it filed its amended complaint, Chrysler Realty also filed a motion for summary judgment and alternative motion for summary adjudication on the first cause of action for specific performance. In support of its motion, Chrysler Realty proffered evidence in an effort to support each element of its cause of action seeking specific performance, demonstrating that the option agreement was sufficiently definite to be enforced, the option agreement was fair and reasonable and supported by adequate consideration, Chrysler Realty timely exercised its option to lease the premises and Rusnak Chrysler breached the option agreement by refusing to lease the premises. This evidence was in the form of copies of the relevant agreements and correspondence, together with declarations submitted by James Dimond (Dimond), DaimlerChrysler’s national dealer placement manager and Robert Beehler (Beehler), Chrysler Realty’s zone real estate manager.
In July 2006, Rusnak Chrysler and Rusnak answered, specifically denying the complaint’s allegations and asserting multiple affirmative defenses. In August 2006, Rusnak Chrysler filed its opposition to Chrysler Realty’s motion for summary judgment and summary adjudication. It asserted that triable issues of material fact existed as to whether any one of the option-triggering events listed in paragraph one of the option agreement had yet occurred; whether Chrysler Realty should be permitted to exercise its option when the conduct of DaimlerChrysler caused the franchise termination; whether the participation agreement was effectively terminated; whether Chrysler Realty properly exercised its option; and whether equitable affirmative defenses barred the relief sought by Chrysler Realty. As the evidence supporting the opposition, Rusnak Chrysler submitted only Rusnak’s declaration. According to his declaration, his termination letter did not terminate the participation agreement and he was therefore still authorized to sell Dodge Sprinter vehicles on the premises. Rusnak also believed that DaimlerChrysler had engaged in the practice of “over-dealerization,” which “is the practice within the automotive industry of intra-brand competition by increasing the number of dealerships or franchises toward incrementally increasing the sale of Chrysler products.” Further, he expressed his opinion that several provisions in the option agreement were ambiguous and/or unfair. Together with its opposition, Rusnak Chrysler also filed evidentiary objections to significant portions of the Dimond and Beehler declarations.
For simplicity, we sometimes refer to Rusnak Chrysler and Rusnak collectively as Rusnak Chrysler. Rusnak has not appealed.
Chrysler Realty replied and filed evidentiary objections to Rusnak’s declaration.
After taking the matter under submission following an August 22, 2006 hearing, on August 30, 2006, the trial court issued its ruling granting summary adjudication on the first cause of action. Specifically referencing numbered facts from Chrysler Realty’s separate statement, the trial court ruled that Chrysler Realty had presented admissible evidence establishing each element of its cause of action for specific performance, including that the option agreement was sufficiently certain, the terms of the agreement were fair, adequate consideration was given, Chrysler Realty’s right to exercise the option was triggered, Chrysler Realty exercised the lease option and Rusnak Chrysler breached the option agreement. The trial court further ruled that there was no admissible evidence supporting Rusnak Chrysler’s assertion that the option agreement terminated before Chrysler Realty exercised its option rights or that DaimlerChrysler unfairly competed with it. In any event, the trial court ruled that any unfair competition would not constitute a breach of the option agreement. Finally, the trial court overruled the objections to the Dimond and Beehler declarations and sustained the objections to the Rusnak declaration.
Thereafter, Rusnak Chrysler filed a motion for reconsideration and alternative motion for clarification of the trial court’s order, which the trial court denied. The trial court entered judgment on October 5, 2007 and subsequently amended the judgment nunc pro tunc to provide for an award of attorneys’ fees and costs in the amount of $224,469.75. We consolidated Rusnak Chrysler’s separate appeals from the judgment and attorneys’ fees award.
DISCUSSION
I. Standard of Review.
A plaintiff moving for summary adjudication or summary judgment bears the initial burden “of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1); see Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) To meet this burden, the plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) The plaintiff need not “disprove any defense asserted by the defendant as well as prove each element of his own cause of action. . . . All that the plaintiff need do is to ‘prove each element of the cause of action.’” (Id. at p. 853.) Once the plaintiff meets this burden, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto,” supported by evidence of specific facts and not mere allegations of the pleadings. (Code Civ. Proc., § 437c, subd. (p)(1); see Aguilar v. Atlantic Richfield Co., supra, at pp. 849–851; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1013–1014.) Until the moving party has met its statutory burden, the opposing party’s burden does not arise. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.)
We review a grant of summary adjudication de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) We assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party’s papers so that all doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary adjudication. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) While we must review a summary judgment motion by the same standards as the trial court, we independently determine as a matter of law the construction and effect of the facts presented. (Ibid.) “The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292.)
II. Chrysler Realty Failed to Meet Its Burden to Show the Absence of a Triable Issue of Fact.
We agree with the trial court’s conclusion that Rusnak Chrysler failed to present admissible evidence demonstrating the existence of a triable issue of material fact. Nonetheless, we cannot conclude that Chrysler Realty was entitled to summary adjudication on its cause of action for specific performance. Rusnak Chrysler’s burden to demonstrate a triable issue of fact never arose because Chrysler Realty failed to meet its threshold burden of proving each element of the cause of action entitling it to judgment. (See, e.g., Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627 [“the moving party’s affidavits must set forth facts establishing every element necessary to sustain a judgment in its favor before defects in counter-affidavits need be examined”].)
It remains a mystery to us why—despite numerous protests about the summary adjudication motion being made so early in the proceedings—Rusnak Chrysler failed to request a continuance of the motion pursuant to Code of Civil Procedure section 437c, subdivision (h). The absence of such a request, coupled with the principle that “[t]he appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later” (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19) requires us to deny Rusnak Chrysler’s motion to augment the record with documents (exhibits K and L) that were not presented to the trial court at the time of the summary adjudication motion.
Although the trial court ruled that “[t]here is no question of fact concerning whether defendants terminated the direct dealer agreement such that plaintiff’s right to exercise its option was triggered,” Chrysler Realty proffered no evidence to support this determination. Rather, Chrysler Realty relied solely on Rusnak Chrysler’s termination letter as the basis for demonstrating that its right to exercise the option was triggered. Our review of the option agreement leads us to the conclusion that the termination letter, standing alone, does not fall within any of the events specified in paragraph one of the option agreement that trigger Chrysler Realty’s lease option.
We construe the option agreement by applying the ordinary rules of contract interpretation. In Santisas v. Goodin (1998) 17 Cal.4th 599, 608, the court described those rules as follows:“‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. [Citations.]’ [Citation.]”
Here, the option agreement provided: “The Seller shall have the option to lease the premises should any one (1) of the events as set forth in Paragraph 1 hereof occur during the twenty-five (25) year period commencing with the date of this Agreement.” This language is typical of an option agreement—imposing a mandatory duty on Rusnak Chrysler upon the occurrence of one or more specified events. As aptly explained in Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1049: “An option to purchase real property, supported by consideration, is a contract by which the owner of the property (the optionor) gives another (the optionee) the exclusive right to purchase the property in accordance with the terms of the option. [Citations.] An option may provide that it can be exercised only upon the existence of specified facts or the occurrence of specified events. [Citation.] If the specified facts do not exist or the specified events do not occur, then the option cannot be exercised. [Citation.]”
The option agreement specified seven discrete events that would trigger Chrysler Realty’s right to exercise its lease option. In its summary adjudication motion, Chrysler Realty asserted that Rusnak Chrysler’s termination letter triggered its right to exercise its option under any one of three different events. According to paragraph one, subsection (a) of the option agreement, the first event that would enable Chrysler Realty to exercise its lease option was: “Should Buyer or the corporation which has entered into a Direct Dealer Agreement with Chrysler Corporation and is identified in Paragraph 1(b) hereof (hereinafter referred to as the ‘Buyer’s Tenant’) fail to occupy the premises, for any reason, for the primary purpose of selling and servicing Chrysler Corporation products pursuant to and under the terms of the Direct Dealer Agreement, or its then current substitute (hereinafter referred to as the ‘Direct Dealer Agreement’), entered into between Buyer and/or Buyer’s Tenant and Chrysler Corporation[.]”
The four remaining events not implicated by the termination letter were: “(c) Should Paul P. Rusnak cease to be one of the individuals named in Paragraph 2 of said Direct Dealer Agreement, unless the replacement for said individual is approved, in writing, by Chrysler Corporation; [¶] (d) Should Paul P. Rusnak cease to be the majority shareholder or controlling partner named in Paragraph 3 of said Direct Dealer Agreement, unless the replacement for said shareholder or partner is approved, in writing, by Chrysler Corporation; [¶] (e) Should there be an actual or attempted sale, transfer, lease (other than the lease contemplated pursuant to Paragraph 1(a) hereof), assignment for the benefit of creditors or other alienation of the fee or the right to possession of the premises; [¶] (f) Should there be instituted, in a Court having jurisdiction thereover, foreclosure proceedings, attachment, execution or similar proceedings affecting the premises[.]”
At the hearing on the summary adjudication motion, Chrysler Realty’s counsel argued that “[t]he record before the court makes clear that the premises are no longer being used to sell Chrysler product. That is a triggering event.” But according to the option agreement, the triggering event is not simply the failure to sell Chrysler products; rather, it is the failure to “occupy the premises” to sell and service Chrysler products. Chrysler Realty presented no evidence in either the Dimond or Beehler declarations to show that Rusnak Chrysler was no longer occupying the premises for the primary purpose of selling and servicing Chrysler Corporation products. Indeed, Chrysler Realty’s own evidence on this point raised a triable issue of fact, as Chrysler Realty’s March 1, 2006 letter notifying Rusnak Chrysler of its option exercise was addressed to Rusnak Chrysler at the premises. Furthermore, Beehler declared that he “personally delivered the March 1, 2006 letter exercising [Chrysler Realty’s] option to lease the Premises and two copies of the Lease Agreement to Jeanette at the dealership location at 2965 East Colorado Boulevard, Pasadena, California on the morning of March 1, 2006.” This statement indicated that Rusnak Chrysler continued to occupy the premises. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843 [court must view evidence and reasonable inferences arising therefrom in the light most favorable to the party opposing summary judgment].) Moreover, there was no evidence that Rusnak Chrysler had ceased selling and servicing Chrysler products at the premises. The supporting declarations contained no information indicating that DaimlerChrysler had removed any unsold vehicles or that any party had taken steps to close down the dealership. Accordingly, Chrysler Realty failed to meet its burden to show that Rusnak Chrysler failed to occupy the premises for the purpose of selling and servicing Chrysler products, a condition precedent to its lease option exercise under paragraph one, subsection (a) of the option agreement.
Chrysler Realty next relied on paragraph one, subsection (b) of the option agreement, which enabled it to exercise its lease option “[s]hould the existing Direct Dealer Agreement dated January 15, 1991 between Pasadena Chrysler Plymouth, Inc. and Chrysler Corporation terminate for any reason whatsoever[.]” According to the Dimond declaration, the predecessor to Chrysler’s current sales and service agreement was a direct dealer agreement. Dimond declared that he “signed on DaimlerChrysler’s behalf the Dodge Sales and Service Agreement with Rusnak Corporation, located at 2965 E. Colorado Boulevard, Pasadena, California, that was in effect until terminated by Rusnak Corporation as of February 28, 2006 (‘Dodge SSA’). . . . A true and correct copy of the Dodge SSA is attached hereto as Exhibit ‘A.’” The Beehler declaration did not contain any information about the existing Dodge sales and service agreement, providing only that “[o]n February 28, 2006, the Direct Dealer Agreements between Rusnak Corporation and DaimlerChrysler, successor to Chrysler Corporation, terminated pursuant to the Termination Notice.”
The agreement that was attached to the Dimond declaration was a Dodge sales and service agreement dated December 23, 2004. The agreement did not state that it was intended to replace or constituted a continuation of a prior agreement. Beyond Dimond’s statement that the sales and service agreement form had replaced the prior direct dealer agreement form, Chrysler Realty provided no evidence as to how the December 23, 2004 sales and service agreement related to the January 15, 1991 direct dealer agreement referenced in the option agreement. Chrysler Realty neither submitted a copy of the January 15, 1991 direct dealer agreement nor offered evidence to demonstrate how Rusnak Chrysler’s termination letter served to terminate the agreement triggering Chrysler Realty’s right to exercise its lease option.
The evidence before the trial court raised a triable issue of fact as to whether Rusnak Chrysler’s termination letter was effective to terminate the January 15, 1991 direct dealer agreement. Although paragraph one, subsection (a) of the option agreement defined the term “direct dealer agreement” as encompassing all substitute agreements, subsection (b) made explicit reference to a particular direct dealer agreement. We must construe the generalized term “Direct Dealer Agreement” in subsection (a) to have a different meaning than the more particular “Direct Dealer Agreement dated January 15, 1991” in subsection (b). (See Queen Villas Homeowners Assn. v. TCB Property Management (2007) 149 Cal.App.4th 1, 9 [“When two words are used in a contract, the rule of construction is that the words have different meanings”]; see also ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1785 [contracts should be construed to avoid rendering terms surplusage].) Accordingly, evidence suggesting that Rusnak Chrysler’s termination letter terminated the December 23, 2004 sales and service agreement attached to the Dimond declaration was insufficient to show that the January 15, 1991 direct dealer agreement was also terminated via the termination letter.
Moreover, Chrysler Realty’s evidence was insufficient to establish even the termination of the January 23, 2004 sales and service agreement. According to that agreement, “DEALER and CC [Chrysler Corporation] recognize that this Agreement does not have an expiration date and will continue in effect unless terminated under the limited circumstances set forth in Paragraph 28.” The agreement attached to Chrysler Realty’s motion did not contain any paragraph 28, nor did either of the supporting declarations attest to the contents of paragraph 28. Thus, it is impossible to know whether the “limited circumstances” included a termination letter submitted by Rusnak Chrysler. Chrysler Realty therefore failed to meet its burden to show that Rusnak Chrysler’s termination letter operated to terminate the January 15, 1991 direct dealer agreement, and it could not rely on the event specified in paragraph one, subsection (b) of the option agreement to exercise its lease option.
Finally, Chrysler Realty asserted that Rusnak Chrysler’s termination letter permitted it to exercise its lease option pursuant to paragraph one, subsection (g) of the option agreement, which identified the following event: “Should the premises be used for a purpose other than performing the obligations and functions required or contemplated by the dealer agreement(s) then in effect between Buyer and Chrysler Corporation or any subsidiary of Chrysler Corporation including, without limiting the generality of the foregoing, the sale of new motor vehicles other than those specifically authorized by the aforementioned dealer agreements(s) between Buyer and Chrysler Corporation or any subsidiary of Chrysler Corporation.”
Again, Chrysler Realty demonstrated the occurrence of this event by relying on argument—not evidence. At the hearing on the motion, Chrysler Realty’s counsel stated: “Mr. Rusnak[’s] Corporation’s dealerships terminated on February 28th. We are now nearly six months past that date and the premises have not been used for the sale of any vehicles. But most importantly, they have not been used for the sale of Daimler, Chrysler vehicles since the termination of the Rusnak Corporation franchises.” Chrysler Realty’s moving papers and attached evidence, however, provided no information to support counsel’s statements. Neither the Dimond nor the Beehler declaration included any information to establish that Rusnak Chrysler was no longer performing its obligations under any of its dealer agreements. For example, the declarations failed to state that those individuals had been to the premises to observe that Chrysler vehicles were no longer being sold, that upon notice of Rusnak Chrysler’s termination Chrysler removed and/or ceased to provide vehicles to Rusnak Chrysler or that Rusnak Chrysler was attempting to sell vehicles other than those authorized by its agreements with DaimlerChrysler. Chrysler Realty offered essentially no evidence to demonstrate the occurrence of the event specified in paragraph one, subsection (g) of the option agreement.
Given evidence that Rusnak Chrysler remained on the premises and the absence of evidence showing that Rusnak Chrysler’s termination letter operated to terminate the direct dealer agreement referenced in the option agreement, a triable issue of material fact remained as to whether the premises were being used for a purpose other than performing the functions contemplated by the dealer agreements. For this reason, Chrysler Realty failed to meet its burden to show that its right to exercise its lease option was triggered pursuant to paragraph one, subsection (g) of the option agreement. (See LLP Mortgage, Ltd. v. Bizar (2005) 126 Cal.App.4th 773, 776 [moving party bears the burden of persuading the court that there is no material issue of fact].)
Because Chrysler Realty failed to meet its burden to prove “each element” of its cause of action for specific performance, we reverse the grant of summary adjudication on the first cause of action. (See Code Civ. Proc., § 437c, subd. (p)(1).) Necessarily, we also reverse the award of attorneys’ fees and costs to Chrysler Realty.
DISPOSITION
The judgment and order awarding attorneys’ fees and costs are reversed and the matter is remanded to the trial court. Appellant is awarded its costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.