Opinion
APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge, Commission on Teacher Credentialing CA4/1., Super. Ct. No. GIC841793.
HUFFMAN, Acting P.J., O'ROURKE, J.
HALLER, J.
Willie Horton, Jr., appeals from a judgment rendered in an action in which he challenged the revocation of his teaching credentials by the Commission on Teacher Credentialing (Commission). The trial court sustained a demurrer in the Commission's favor, except for a racial discrimination claim, because Horton failed to exhaust administrative remedies. Thereafter, the court granted summary judgment in the Commission's favor on the racial discrimination claim. We conclude the trial court's rulings were correct, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Horton filed a motion to augment the record and a request for judicial notice. We grant his unopposed motion to augment with exhibits presented to the trial court. We grant his unopposed request for judicial notice to the extent it pertains to documents reflecting official acts of public agencies, and deny it as to documents from nonpublic entities. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 19, pp. 113-114.)
Overview
Prior to the revocation of his teaching credentials, Horton was terminated by the San Diego Unified School District (District) for misconduct. He unsuccessfully sought to overturn his termination in administrative and judicial proceedings, including an appeal before this court. After the proceedings challenging the termination were completed, a committee of the Commission investigated the matter and recommended that his teaching credentials be revoked. He failed to request an administrative hearing to review this recommendation, and the recommendation was adopted by the Commission without a hearing. Representing himself, he then sought judicial review of the revocation of his credentials in superior court. Because of his failure to exhaust his administrative remedies, the superior court sustained a demurrer as to all claims except the racial discrimination claim. The court thereafter granted summary judgment on the racial discrimination claim. To review Horton's challenges, we summarize the proceedings leading up to the credentials revocation, and the subsequent action in the superior court.
Horton's Termination from the District
Horton was a principal at a District alternative high school. In 2000, the District placed him on unpaid administrative leave and initiated termination proceedings based on allegations of "immoral conduct, dishonesty, evidence of unfitness to teach and persistent violations and refusal to obey reasonable regulations prescribed by the Board." Horton requested a hearing before the Commission on Professional Competence (CPC). In February 2000 a five-day hearing was held before this body. Approximately 26 witnesses testified and approximately 75 exhibits were introduced at the hearing. In March 2001, the CPC upheld the District's dismissal and issued a 27-page decision explaining the basis for its decision that Horton should be dismissed.
Summarizing its decision, the CPC concluded Horton should be dismissed because he "appropriated funds donated for the benefit of his students and diverted some of them for his own use, he used funds mandated to be used to purchase instructional materials to purchase merchandise which was redeemed by students for their personal use, and he failed to promptly provide students with instructional materials in his possession"; his misconduct continued through the dismissal proceedings as "he went to . . . great lengths to cover up his misconduct"; and he was "reluctan[t] to admit any impropriety, other than being a sloppy bookkeeper" which made "the likelihood of further misconduct substantial."
Horton challenged the termination by filing a petition for writ of mandate with the superior court, an appeal before this court, and a petition for review before the California Supreme Court. The superior court determined the agency's findings were supported by the weight of the evidence. On appeal, we rejected Horton's various arguments challenging the termination. (Horton v. San Diego Unified School District (March 10, 2003) D039749 [nonpub. opn.]) On July 16, 2003, the California Supreme Court denied Horton's petition for review.
Revocation of Horton's Teaching Credentials
In a letter dated July 24, 2003, the District notified the Commission that it had received the California Supreme Court's denial of review of Horton's termination case. By letter dated February 11, 2004, the Commission notified Horton that because it had received information that he had been dismissed based on allegations of misconduct, it was commencing a preliminary investigation of his fitness to hold a credential. The letter stated that Horton could provide a written response within 30 days of the date of the letter, and explained that typical information submitted for consideration could include a letter explaining the facts and circumstances surrounding the misconduct, recent letters of recommendation, and recent work evaluations. The letter stated all available information would be considered by the Commission's Committee of Credentials (Credentials Committee), and that at that time the Credentials Committee would either close the investigation or schedule the matter for additional review.
Horton sent several letters to the Commission stating his views that his termination had been illegal and in violation of his due process and civil rights. He also sent favorable letters of recommendation written on his behalf for purposes of his application to work at another school district.
On February 19, 2004, Horton filed a racial discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that the Commission's investigation was retaliatory and commenced because of his race. On April 19, 2004, the EEOC sent Horton a right-to-sue letter because it could not investigate the charge and did not intend to file a lawsuit within the required time period.
In June 2004, Commission investigator Gayle Fukushima prepared an investigative report summarizing the background information leading to Horton's dismissal from the District and the CPC's decision upholding the termination, and setting forth circumstances in mitigation and aggravation. At its June 2004 meeting, the Credentials Committee found probable cause to recommend revocation of Horton's teaching credentials. The Credentials Committee prepared a statement of its findings, in which it summarized the contents of the CPC's termination decision and noted that Horton had been unsuccessful in overturning the termination decision before the superior and appellate courts.
By letter dated July 2, 2004, the Commission notified Horton that the Credentials Committee had found probable cause to recommend revocation of his teaching credentials and sent him a copy of the Credentials Committee's findings. The letter informed Horton that he could seek review of the Credentials Committee's recommendation within 30 days of the date of mailing of the letter through two options: (1) send a written request for reconsideration containing new and relevant information not previously reviewed by the Credentials Committee, or (2) send a written request for an administrative hearing before an administrative law judge. The letter stated that if he elected an administrative hearing, it would be held before an administrative law judge, and that the disciplinary action imposed following the administrative hearing could be greater or lesser than the action recommended by the Credentials Committee. Further, the letter advised Horton that if he did not elect one or both of these options, the Credentials Committee's recommendation would be adopted by the Commission without further proceedings.
Horton did not request reconsideration or an administrative hearing to review the Credentials Committee's recommendation. In a letter dated October 7, 2004, the Commission informed Horton that it had revoked his credentials effective November 6, 2004.
Superior Court Proceedings February 2005 Pleading
In February 2005, Horton filed a pleading in superior court challenging the Commission's revocation of his credentials. He identified the claims as lack of jurisdiction, due process violation, interference with property interest in employment as a teacher, and racial discrimination. Horton alleged that on February 11, 2004, he called District Superintendent Alan Bersin and asked him to follow District procedures in the closing of the alternative high school where Horton had been principal. The next day, he received a letter from the Commission, dated February 11, 2004, informing him that the Commission was investigating his fitness to hold a credential. He alleged Bersin was a member of the Commission; the District turned over erroneous information about him to the Commission; and the District and the Commission conspired to revoke his credentials after he called Bersin regarding the need to follow procedures for the closing of schools. He alleged that when the Commission commenced its investigation in February 2004, he had been successfully teaching in juvenile court schools for four years. When his teaching credentials were revoked by the Commission in November 2004, he lost this teaching position. He also alleged that the Commission violated his rights by relying on the District's improper termination of him.
The pleading was denominated "First Amended Complaint . . . . Declaratory Relief or Injunctive Relief. Ultimately a Writ of Mandate. § 1094.5."
On March 18, 2005, the Commission filed a demurrer alleging that Horton had failed to exhaust his administrative remedies. The Commission asserted that Horton had been advised of his right to administrative review, but failed to exercise his right to an administrative hearing.
On April 8, 2005, Horton filed an opposition to the demurrer, contending that he should be excused from exhausting his administrative remedies.
On May 11, 2005, the trial court denied the demurrer as to Horton's racial discrimination claim, and granted the demurrer for the remaining causes of action with leave to amend to allege facts showing exhaustion of his administrative remedies would have been futile.
May 2005 Pleading & Demurrer
In May 2005, Horton filed an amended pleading. Regarding exhaustion of administrative remedies, he alleged a request for reconsideration would have been futile because District Superintendent Bersin, who had authorized his termination from the District, was a member of the Commission. Further, he alleged pursuit of an administrative hearing would have resulted in irreparable harm because his credentials would have been revoked pending the outcome of the hearing and it would have taken about two years to have an administrative hearing.
On June 17, 2005, the Commission filed a demurrer to the May 2005 pleading, alleging that Horton's failure to exhaust his administrative remedies should not be excused and that the pleading failed to state a viable claim for racial discrimination. The Commission argued that Horton's claim that he would not have received a fair hearing because Superintendent Bersin was a member of the Commission was speculative, and his claim of irreparable harm was unavailing because his credentials would not have been revoked pending an administrative hearing. Regarding his racial discrimination claim, the Commission argued this claim was not viable because Horton was not an employee of the Commission; rather, the Commission was merely the licensing entity responsible for issuing teacher credentials and disciplining credential holders.
On July 27, 2005, the trial court ruled that Horton had not and could not allege facts showing exhaustion of his administrative remedies would have been futile or caused irreparable harm. Accordingly, the court sustained the demurrer without leave to amend, except as to the racial discrimination claim. The court rejected the Commission's request for a demurrer on the racial discrimination claim based on its assertion there was no employer-employee relationship because the Commission had not raised this issue in its demurrer to the February 2005 pleading.
Summary Judgment Motion
On October 28, 2005, the Commission moved for summary judgment on the remaining racial discrimination claim. The Commission argued that Horton had failed to present a viable claim for racial discrimination because (1) there was no employer-employee relationship between Horton and the Commission, and (2) there was no prima facie case of racial discrimination. Regarding the latter contention, the Commission asserted that Horton had not alleged any facts showing discrimination, and the evidence showed the Commission revoked his credentials based solely on the misconduct that lead to his dismissal from the District.
To support its position, the Commission provided the various legal decisions upholding the District's termination (including the CPC's decision and our appellate court opinion) and submitted declarations from District attorney Jose Gonzales and Commission Director Mary Armstrong. Attorney Gonzales declared that Horton was dismissed by the District because of his misfeasance with school monies, not because of his race. Commission Director Armstrong declared that in July 2003 the Commission received information from the District regarding Horton's dismissal; the Commission commenced an investigation into Horton's fitness to hold a credential; as a result of the investigation the Commission found probable cause to recommend revocation of Horton's credentials; and after Horton failed to request an administrative hearing the Commission's recommendation became final in November 2004. Armstrong declared that the Commission's decision to revoke Horton's credentials was based solely on his misconduct, and his race was not a factor in its decision.
Horton filed an opposition to the Commission's summary judgment motion, as well as his own "summary adjudication" motion on the racial discrimination claim. Regarding the issue of an employment relationship with the Commission, he asserted a direct employment relationship was not necessary if the defendant exercised sufficient power over the plaintiff's employment opportunities.
Regarding evidence of discrimination, Horton delineated various factors that he contended showed racial discrimination. He asserted that the District waited several years before contacting the Commission; District Superintendent Bersin was serving on the Commission; and Horton was notified of the Commission's commencement of an investigation after he complained to Bersin about following procedures for closing schools. He contended that the timing between his telephone call to Bersin and the Commission's commencement of its investigation supported an inference of racial discrimination. Further, he asserted he provided the Commission with information about procedural improprieties and racial discrimination during the termination process, and with information showing he was a competent teacher. He argued the Commission investigator failed to disclose this information to the Commission; the Commission ignored these documents and merely "rubber stamped" the District's decision to terminate him; and the Commission conspired with Bersin to revoke his credentials.
Horton further argued that his alleged misfeasance with school funds was not connected to his responsibilities as a teacher; he had successfully taught for more than four years at the juvenile hall school when the Credentials Committee recommended revocation of his credentials; and no disciplinary action should have been taken by the Commission. He argued there was a prima facie case of racial discrimination because he is African-American, no other employees were reprimanded or terminated as a result of alleged misappropriations of funds, and he was the only administrator terminated by Superintendent Bersin's administration because he had filed previous discrimination complaints against the District.
To support his arguments, Horton submitted several documents that he stated he provided to the Commission during its investigation. One document was a May 2002 declaration from attorney Clifton Blevins. Attorney Blevins declared that he was familiar with the facts of Horton's termination case, and that the District had used tactics in Horton's case that showed he was treated differently than White employees accused of similar rule violations. Attorney Blevins also declared that the percentage of African-American administrative employees who suffered adverse employment actions was inordinately high compared to the percentage of such employees in the overall staff and that this trend began with Superintendent Bersin's administration. Another document consisted of an April 2002 letter of recommendation from the principal of the juvenile hall school where Horton had been employed after his termination from the District, which described his exemplary teaching performance.
The letter stated that Horton had been teaching at the Sarah Anthony School in juvenile hall; that his teaching performance had "surpassed all expectations in every respect"; and he was a "very experienced administrator and . . . highly skilled as a hands on teacher."
On February 21, 2006, the trial court granted the Commission's summary judgment motion and denied Horton's "summary adjudication" motion. The trial court ruled summary judgment in the Commission's favor was proper because Horton had failed to file a separate statement of material facts and declaration authenticating the evidence he provided in support of his motion and his opposition to the Commission's summary judgment motion. Additionally, the court ruled that even if Horton had filed the required documents, summary judgment in the Commission's favor was warranted because there was no employer-employee relationship with the Commission and no prima facie case of racial discrimination.
DISCUSSION
In this appeal, Horton reiterates many of the arguments he presented to the trial court. Noting the delay in the District's report of his dismissal to the Commission and the close timing between his telephone call to Bersin and the commencement of the Commission's investigation, he argues there is a triable issue of fact whether the Commission's action constituted retaliation for his call to Bersin. He further contends that Commission investigator Fukushima's report concealed information that after his termination he had successfully taught for more than four years at another school district. Challenging the procedural fairness of the proceedings, he argues Bersin had a conflict of interest and there are triable issues of fact whether Bersin conspired with Fukushima to conceal information; whether Bersin improperly influenced the Commission's decision; and whether the Commission merely "rubber-stamped" the Credential Committee's retaliatory recommendation. Additionally, attacking the substantive merits of the Commission's decision, he asserts that he was charged with misconduct as a principal, not as a teacher; the charges had nothing to do with his fitness to teach; he was rated as a superb teacher for four years; and no credible evidence supported an inference of his unfitness to teach. Relying on the above assertions, as well as a claim that Bersin had a history of discriminating against African-Americans, Horton contends there are triable issues of fact regarding his racial discrimination claim.
In his opening brief on appeal, Horton sets forth several arguments that he did not present to the trial court; we decline to review them. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873 [party may not change theory on appeal].) Additionally, for the first time in his reply brief, Horton presents arguments in reliance upon a wrongful termination action he apparently filed in superior court; we also decline to address this issue. (See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [issues raised for first time in reply brief are waived].)
In his brief on appeal, Horton contends Bersin was "a voting member" of the Commission's "committee." In his pleading before the trial court, he alleged Bersin was appointed as a member of the Commission in 2000, that he served as chairman of the Credentials Committee in 2002, and that he was reappointed in 2002 for another term on the Commission. During the summary judgment proceedings pertaining to the racial discrimination claim, no facts were presented regarding Bersin's status during any of the relevant time periods in 2004 (i.e., when the Credentials Committee initiated its investigation, when the Credentials Committee recommended revocation, and when the Commission approved the revocation). Further, no facts were presented indicating that Bersin participated in the revocation decision. Additionally, because Horton did not pursue his administrative remedies, these factual issues were not developed in the administrative forum.
In his brief on appeal, Horton also asserts there is a triable issue of fact whether the Commission revoked his credentials because he filed racial discrimination charges with the EEOC in response to the Commission's commencement of its investigation. The record does not show he presented this argument to the trial court; accordingly, we will not consider it for the first time on appeal. (Saville v. Sierra College, supra, 133 Cal.App.4th at pp. 872-873.)
Horton's arguments call into question both the trial court's demurrer ruling and summary judgment ruling. Horton fails, however, to present any argument on the issue of exhaustion of remedies. As we shall explain, we conclude that because Horton failed to address the exhaustion requirement, he cannot prevail on a challenge to the demurrer ruling. We also hold the Commission carried its burden to show there was no prima facie evidence of racial discrimination so as to warrant summary judgment.
It was not entirely clear from Horton's opening brief whether he was challenging the demurrer in addition to the summary judgment, and the Attorney General apparently interpreted his appeal as only addressing the summary judgment. We address both rulings, and conclude Horton's challenges fail as to both.
Demurrer
The trial court sustained the demurrer as to all claims except the racial discrimination claim based on a finding that Horton could not pursue a judicial challenge to the Commission's decision because he failed to exhaust his administrative remedies and he could not allege facts excusing him from this requirement.
When reviewing the sustaining of a demurrer, we exercise our independent judgment to determine whether the complaint states a cause of action as a matter of law. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.) We assume the complaint's properly pleaded or implied factual allegations are true, and also consider judicially noticeable matters. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 (Campbell).) Generally, a party must obtain a decision from the final administrative decision maker before seeking judicial relief. (Id. at p. 321; Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080; Richards v. Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 304, 315 (Richards).) The exhaustion requirement is designed to reduce litigation, facilitate the development of a complete factual record, and allow the agency to apply its expertise. (Richards, supra, 139 Cal.App.4th at p. 315; Coachella Valley, supra, 35 Cal.4th at p. 1080.)
Here, the Education Code allows a teacher to request an adjudicatory hearing pursuant to the provisions of the Administrative Procedure Act to challenge a credentials committee's recommendation of adverse action. (Ed. Code, §§ 44244.1, subd. (a)(1); 44242.5, subd. (c)(3)(B); see California Teachers Assn. v. California Com. on Teacher Credentialing (2003) 111 Cal.App.4th 1001, 1007.) Under the Administrative Procedure Act, after an administrative law judge (ALJ) hears the case at the administrative hearing, he or she prepares a proposed decision. (Gov. Code, § 11517, subd. (c)(1).) The agency (i.e., the Commission) may then adopt or change the proposed decision, reject the proposed decision and refer the case back to the ALJ for additional evidence, or reject the proposed decision and decide the case itself with or without additional evidence and after giving the parties an opportunity for oral or written argument. (Gov. Code, § 11517, subds. (c)(2)(A)-(E).) Once the agency's decision is final, it may be judicially reviewed through a petition for writ of mandate under Code of Civil Procedure section 1094.5. (Gov. Code, § 11523; see Gupta v. Stanford University (2004) 124 Cal.App.4th 407, 411.)
When Horton received the Credentials Committee's recommendation to revoke his credentials, he was notified that he had the right to request an administrative hearing before an ALJ. According to the letter sent to Horton, the Credential Committee's findings resulted in a recommendation for revocation, and Horton had the opportunity to seek administrative review before the actual revocation of his credentials. Under the exhaustion rule, Horton was required to pursue this administrative remedy before seeking judicial review. If an administrative hearing, followed by Commission review of the ALJ's proposed decision, had occurred, Horton could have objected if he believed any persons with conflicts were participating in the decision, and he could have raised his various concerns about the fairness of the Commission's investigation as well as his substantive challenges to the revocation recommendation. If he did not prevail before the ALJ or the Commission, he could have then sought judicial review of the final administrative decision by a petition for writ of mandate. Because Horton did not pursue relief in the administrative forum, he failed to develop a record that would have facilitated judicial review, which is one of the key purposes of the exhaustion of administrative remedies rule.
We note that the allegations in this case do not constitute a challenge to the procedural fairness of the structure of the Commission's administrative procedures. (Compare Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 168, 172-178 [when administrative remedy itself violates due process, plaintiff need not exhaust administrative remedies].) Rather, Horton alleges the Commission's handling of his particular case was unfair, a matter that could have been explored during an administrative hearing. (See Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 519, 522-523 [exhaustion requirement not excused merely because of claim that the administrative hearing was being conducted unfairly].)
Although there are exceptions to the exhaustion requirement (see Campbell, supra, 35 Cal.4th at p. 322; Richards, supra, 139 Cal.App.4th at p. 316), in his briefing on appeal Horton has not presented any argument that an exception applies here; indeed, he entirely fails to discuss the issue of exhaustion of administrative remedies. Issues not raised in an appellant's brief are deemed waived or abandoned. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Because Horton has not addressed the exhaustion issue in his appellate briefs, he has abandoned his claim that he should be excused from the exhaustion requirement. Absent a showing that an exception to the exhaustion requirement applies, the trial court properly sustained the demurrer because Horton failed to exhaust his administrative remedies.
Summary Judgment
We review the trial court's granting of summary judgment de novo, considering all of the evidence presented by the parties except evidence properly excluded by the trial court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if this burden is met, the burden of production shifts to the opposing party to make a prima facie showing of a triable issue of material fact. (Ibid.) We view the evidence in the light most favorable to the opposing party, liberally construing the opposing party's evidentiary showing while strictly scrutinizing the moving party's showing. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
The Attorney General does not dispute the trial court's ruling that the racial discrimination claim was not barred by Horton's failure to exhaust administrative remedies. We assume for purposes of our analysis that the ruling is correct.
To pursue a discrimination claim, the plaintiff has the initial burden to show a prima facie case of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The plaintiff must show " ' "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a [prohibited] discriminatory criterion . . . .' " ' " (Id. at p. 355, original brackets.) Generally, there must be "some . . . circumstance that suggests discriminatory motive." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 (Cucuzza).)
In summary judgment proceedings, a defendant charged with discrimination may meet its burden by showing the plaintiff cannot establish a prima facie case of discrimination. (See Cucuzza, supra, 104 Cal.App.4th at p. 1038.) If the defendant presents evidence of a legitimate, nondiscriminatory reason for its conduct, the plaintiff must then present evidence that can support an inference of discriminatory motive. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 357-358; Cucuzza, supra, 104 Cal.App.4th at p. 1038; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098, 1101.) " '[S]peculation cannot be regarded as substantial responsive evidence.' " (Cucuzza, supra, 104 Cal.App.4th at p. 1038, original brackets.) Rather, the plaintiff must set forth specific facts demonstrating the falsity of the defendant's proffered legitimate reasons so that a reasonable fact finder could rationally find them unworthy of credence. (Ibid.)
Here, the Commission presented evidence showing there had been prior adjudications that Horton engaged in misconduct warranting dismissal, and that the Commission relied on these adjudications, not his race, when revoking his credential. Horton did not present any facts that could reasonably support a contrary inference that the Commission was motivated by his race to revoke his credentials. A primary thrust of Horton's racial discrimination claim appears to be that he was terminated by the District because of his race; the Commission was aware of this discriminatory termination; and the Commission relied on his discriminatory termination to revoke his credentials. However, Horton has not presented any facts showing he provided the Commission with information showing he was terminated for racial reasons rather than for misconduct. Attorney Blevins's declaration claiming that racially discriminatory tactics had been used in Horton's termination case, and that Bersin's administration had discriminated against African-Americans in its personnel actions, was premised on conclusory statements with no supporting factual information. No facts were presented to rebut the Commission's showing of its nondiscriminatory motive derived from its reliance on the adjudicated findings of misconduct. Given our conclusion that the Commission carried its burden to show no triable issue of fact on racial discrimination, we need not address the issue regarding whether there was an employer-employee relationship with the Commission.
The demurrer and the summary judgment were properly granted. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs on appeal.