Opinion
E068425
07-05-2018
ROLF KAMPA, et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; RICK KAMPA, et al., Real Parties in Interest.
Estelle & Kennedy, Michael L. Kennedy and Danielle Katura Little, for Petitioners and Defendants. No appearance for Plaintiff and Respondent. No appearance for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1605715) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate/prohibition. Donald R. Alvarez, Judge. Petition is denied. Estelle & Kennedy, Michael L. Kennedy and Danielle Katura Little, for Petitioners and Defendants. No appearance for Plaintiff and Respondent. No appearance for Real Parties in Interest.
In this real property dispute, petitioners Rolf and Isabel Amanda Kampa challenge the trial court's denial of their motion to expunge a lis pendens filed by real parties in interest Rick and Sofia Kampa (real parties), petitioners' son and daughter-in-law, against the real property owned by petitioners and in which real parties have been living. We have determined that the petition for writ of mandate or prohibition must be denied.
I
FACTS OF THE CASE
The facts of the case are taken from petitioners' writ of mandate/prohibition.
Real parties lost their home to foreclosure in July 2009; petitioners purchased a home in September 2009 for the use of real parties as a residence, in return for payment of mortgage, or rent in the amount of mortgage, and other costs. Real parties alleged below that this arrangement arose as part of an oral agreement between them and petitioners that in return for real parties finding a suitable house, occupying it and paying the mortgage amount, petitioners agreed to make the down payment and that the parties would be co-owners and ultimately would share 50/50 in proceeds from a future sale of the real property. After petitioners repudiated the agreement, real parties ceased paying in August 2015, and refused to vacate. Petitioners filed an unlawful detainer action on March 16, 2016; real parties filed a quiet title action, with other associated causes of action, on April 14, 2016, predicated on their alleged ownership interest in the property based in turn on Rolf Kampa's oral promises. They also filed the lis pendens at issue here. The unlawful detainer action and quiet title action were consolidated (and stayed pending this petition). Now in the second amended complaint (SAC), petitioners dismissed the cause of action for quiet title, but added a claim for promissory estoppel; causes of action for declaratory relief, breach of contract, fraud, constructive trust, and partition remain. Petitioners eventually filed a motion to expunge the lis pendens. After briefing and a hearing, the trial court denied the motion to expunge on April 27, 2017, leading to the instant petition.
This court summarily denied the petition on July 11, 2017. Petitioners sought review in the California Supreme Court, which granted review and transferred the matter back to this court with instructions to vacate the denial and to issue an order directing respondent Superior Court of San Bernardino County to show cause why the relief sought in the petition should not be granted, on September 15, 2017. This court issued the appropriate orders, with directions for respondent to show cause within 25 days of the date of the order, October 3, 2017, with petitioners to have 15 days from the date of filing of the return to file a traverse. Respondent did not file a return to the show cause order. Petitioners nonetheless filed a traverse on November 3, 2017.
II
DISCUSSION
1. Merits
As a preliminary matter when addressing the merits of petitioners' contentions, the court observes that where a formal return is ordered, but no return filed, the court must accept as true all well-pleaded and verified allegations in the petition. (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1084.) Yet, this basic precept is problematic here, where the petition does not articulate factual allegations other than those made by real parties in their filings in the superior court. That is, petitioners repeat in detail real parties' allegations (with detailed citation to the record), but make no narrative of their own factual allegations, aside from a few comments in the margins (i.e., alleging that "Mr. and Mrs. Kampa thereafter rented the subject property to Rick and Sofia . . . ," while in the same paragraph alleging that "Rick and Sofia have failed to pay any rent or monies towards the mortgage nearly two years later," reflecting real parties' allegations that they were making the mortgage payments, if via petitioners). Instead of alleging facts as to the events surrounding the real property that reflect what petitioners believe transpired, they simply recite the allegations of real parties' complaints and supporting documents (interspersed with describing the procedural history of the case below) and then attempt to argue how real parties' allegations fail to state a claim as a matter of law. Petitioners do not attempt to make a showing that real parties' allegations are false or inaccurate; to the contrary, the petition seems to adopt the factual allegations as real parties present them. The court will keep that framework in mind as it proceeds through the analysis post.
" 'A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice.' (Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1144 [(Urez Corp.)].) A lis pendens may be filed by any party in an action who asserts a 'real property claim.' (Code Civ. Proc., § 405.20.) Section 405.4 defines a ' "Real property claim" ' as 'the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property. . . .' 'If the pleading filed by the claimant does not properly plead a real property claim, the lis pendens must be expunged upon motion under CCP 405.31.' " (Kirkeby v Superior Court (2004) 33 Cal.4th 642, 647, fn. omitted (Kirkeby).) "The effect of such notice is that anyone who acquires an interest in the property after the action has been filed will be bound by any judgment which may thereafter be rendered in the action. [Citation.]" (Urez Corp., at p. 1144.) "There has been no definitive interpretation of the phrase 'affect title to or right of possession.' " (Id. at p. 1145.)
Petitioners argue three fundamental issues, which they first raised in their motion to expunge lis pendens in the superior court: that the SAC does not properly state a real property claim; that real parties cannot establish the probable validity of their claim to a preponderance of the evidence; and, that real parties failed to give proper notice of filing the lis pendens. Petitioners assert that the trial court erred in denying each of these contentions. As discussed below, the trial court did not err.
A. Real Property Claims
Petitioners assert that real parties' causes of action in the SAC cannot state a real property claim, relying in large part on the statute of frauds. In making a determination on this assertion, the court "must engage in a demurrer-like analysis. 'Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim.' " (Kirkeby, supra, 33 Cal.4th at pp. 647-648.) Such review is only as to the adequacy of the pleading and normally should not involve evidence from either side, other than matters subject to judicial notice on a demurrer. (Id. at p. 648.) Essentially, the court must determine whether any claim relating to real property affects " 'title to, or the right to possession of, specific real property.' " (Ibid.)
Real parties' causes of action for breach of contract, fraud and constructive trust do not obviously pertain to real property. However, their causes of action for partition of the real property between them and petitioners, and for declaratory relief regarding the real property, do relate to real property. The cause of action for promissory estoppel is implicated in the analysis.
Actions for declaratory relief are governed under Code of Civil Procedure section 1060, which permits "[a]ny person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time." Here, the crux of the parties' contentions is whether there is a written instrument, and whether the doctrine of estoppel may plead the statute of frauds in this real estate matter.
All further citations are to the Code of Civil Procedure unless otherwise specified.
As petitioners insist, ordinarily the statute of frauds invalidates a contract for the sale of real property, or of an interest therein, unless "they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent." (Civ. Code, § 1624, subd. (a).) Because real parties only assert an oral agreement on the part of petitioners to convey an interest in the real property, petitioners repeatedly contend, the statute of frauds invalidates any such agreement and real parties cannot establish the probable validity of the real property claim.
However, "[t]he doctrine of estoppel to plead the statute of frauds may be applied where necessary to prevent either unconscionable injury or unjust enrichment." (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 27 (Tenzer); see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 [the statute of frauds should not be applied "so as to facilitate fraud"].) As our Supreme Court observed, proof of intent not to perform the promised conduct is required. (Ibid.) This point will be addressed in the discussion of petitioners' claims' probable validity, post.
Restricting the analysis to the sufficiency of the real property pleadings for the moment, real parties have alleged in their first cause of action for declaratory relief that they and petitioners agreed to purchase the real property together as co-owners in September 2009; pursuant to their oral agreement, real parties made all of the mortgage payments and invested money and time to renovate the property and performed all maintenance; that a controversy has arisen concerning their respective rights and duties; and real parties seek a judicial determination of the parties' respective rights and duties and a declaration that real parties are the owners of "at least 50% of the Property, and that [their] interpretation of their property rights is correct." This pleading meets the requirements of section 1060, with the exception of a writing. However, real parties have also pleaded promissory estoppel in the SAC. " ' "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee . . . and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." ' [Citations.]" (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 944 [citing, inter alia, Rest.2d Contracts, § 90].) In this case, real parties alleged that on or about September 2009, petitioners made oral promises that if real parties agreed to find a desirable residential real property, agreed to make all of the monthly mortgage payments, remodel the real property, and occupy the property, petitioners would contract for and finance the purchase and pay for homeowners insurance and property taxes, and petitioners would also provide a notarized letter to real parties confirming their 50 percent ownership in the real property, that upon reaching the amount of $50,000 paid toward mortgage payments, the parties would then split the mortgage payments 50/50, that the parties would be equal co-owners of the real property, and would eventually sell the real property and split the net proceeds 50/50. Real parties further alleged that they relied on these representations and carried out their duties and obligations under the oral agreement, to their detriment, including the expenditure of funds and other requirements. They also alleged that petitioners had no intent to perform under those representations and are attempting to convert real parties' value in the co-ownership to their own use.
Taken together, these pleadings certainly affect " 'title to, or the right to possession of, specific real property.' " (Kirkeby, supra, 33 Cal.4th at p. 648.) Therefore, they state a claim for real property in the form of declaratory relief.
Using the same analysis, real parties have also stated a claim for partition in the real property. Section 872.210, subdivision (a)(2), states that "[a] partition action may be commenced and maintained by any of the following persons: [¶] . . . [¶] (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates." Applying the promissory estoppel analysis to this requirement, petitioners would be estopped from asserting that real parties are not owners for a partition claim. Section 872.230 specifies the required content of the complaint claiming partition: "(a) A description of the property that is the subject of the action. . . . In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) All interests the plaintiff has or claims in the property. [¶] (c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff. [¶] (d) The estate as to which partition is sought and a prayer for partition of the interests therein. [¶] (e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language." (§ 872.230, subds. (a)-(e).) The allegations in the SAC address each of these requirements, and seek partition by sale of the property as more equitable than division in kind because the real property is a single family home and cannot be physically divided. As with the claim for declaratory relief, these pleadings affect title to, or the right to possession of, specific real property. (Kirkeby, supra, 33 Cal.4th at p. 648.) Therefore, they state a claim for real property in the form of partition.
As we noted above, petitioners do not allege a different set of facts in the petition, but simply argue the legal sufficiency of the causes of action. Accordingly, viewed in a demurrer-like analysis, real parties have sufficiently pleaded claims for real property. The court will next examine their probable validity.
B. Probable Validity of Real Property Claims
"In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim." (§ 405.32.)
As section 405.32 suggests, the analysis here is not "demurrer-like," but is based on evidence supporting the probable validity of the pertinent real property claim. There are at least two substantial evidentiary documents supporting the probable validity of real parties' two real property claims: Rick Kampa's declaration, submitted as an exhibit to the opposition to petitioners' motion to expunge, and a text message from Rolf Kampa's phone to Rick Kampa's phone, identifying the origin as "DAD.CELL."
The Rick Kampa declaration explains in detail the actions and chronology of events between the parties. In addition to the alleged basic agreement between the parties described above as related in the SAC and detailed in the declaration, the declaration also attests that real parties gave petitioners an additional $4,000 before closing on the real property for use as part of the down payment; that real parties expended a total of $15,440.77 to renovate the real property pursuant to the agreement; that after about six months of making mortgage payments in the amount of $1,150 per month under the parties' agreement, the amount was increased to $1,250 per month to help pay property taxes (contrary to the agreement); and that on or about August 1, 2015, real parties learned petitioners' representations were false when they stated an intention to sell the real property, convert real parties' share of the proceeds to their use, and give real parties $30,000 on the sale instead of the 50 percent interest on which they had agreed. The declaration was properly executed and sworn under penalty of perjury. Rick Kampa's declaration also authenticates the text message from "DAD.CELL," which was attached to the declaration as "Exhibit 2."
The text message states, "Rick I will put the house on the market in two months no later I need to fix the place a bid my decision is final there is no other way out after the sale I will give you half the profit as we agree when all expenses are paid and money you owe me and bank loan is paid off." (Sic.) This text message was sent "Fri, Sep 11, 1:27 PM," which, as the superior court observed, was September 11, 2015. The header on the message shows that it originated from "DAD.CELL." The timing of the text directly supports the narrative that petitioners promised to share half interest in the real property with real parties. It also meshes neatly with real parties' cessation of paying rent/mortgage in August 2015 and that petitioners' filing of an unlawful detainer against them in March 2016 was proof of petitioners' intent not to perform. (Tenzer, supra, 39 Cal.3d at p. 30 [fraudulent intent may be inferred from, e.g., defendant's insolvency, hasty repudiation of the promise, failure to even attempt performance, or continued assurances after it was clear he would not perform].)
Petitioners claim that the text message is "inadmissible," but they do not explain why that is so or cite any authority in support. Instead, the text message is properly authenticated by Rick Kampa's declaration. Further, petitioners do not claim that the message did not originate from Rolf Kampa; they simply argue it should not be admitted and that it post-dates the alleged oral agreement to split ownership of the property and share the profits of its sale by several years. Notwithstanding, the text of the message convincingly supports real parties' claim of the oral agreement.
Petitioners nonetheless argue that this ignores the declaration of their real estate expert, Barbara Nichols, as to the overall validity of real parties' claims. If this were a traditional real estate transaction, that might be true. But, the Nichols declaration plainly ignores the construct of an intrafamilial agreement of the type pleaded in the SAC. In that light, it is of limited usefulness.
Considering the evidentiary value of the text exhibit, the validity of real parties' real estate claims meet the preponderance of the evidence test at this stage.
C. Service
"Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action." (§ 405.23.) Section 405.22 requires service, by specified means, to all adverse parties and owners of record prior to recordation of the lis pendens. In pertinent part, section 1013a requires that a proof of service consist of, inter alia, "[a]n affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid." (§ 1013a, subd. (1).)
Here, the pertinent document appears in petitioners' record at volume I, exhibit 6, pages 87-95. Its cover sheet reflects the unlimited civil case number and is entitled "Notice of Pendency of Action for Declaratory Relief, to Quiet Title, for Breach of Contract, Fraud, Constructive Trust, and Partition." (Id. at p. 87.) It states, "NOTICE IS GIVEN that the above-entitled action stating a real property claim as described in this notice was commenced on April 14, 2016"; that "[t]he action affects title to specific real property or the right to possession of specific real property, situated in San Bernardino County, California"; states the property's street address in Fontana, California; and refers to a legal description of the property attached at "Exhibit A" to the document. (Id. at pp. 87-88.) The proof of service complies with section 1013a in all respects except for the identification of the notice of pendency. The proof of service states, "On April 28, 2016, I served the foregoing documents described as DECLARATORY RELIEF, TO QUIET TITLE, FOR BREACH OF CONTRACT, FRAUD, CONSTRUCTIVE TRUST, AND PARTITION on the interested parties in this action." (Id. at p. 94.) It omits the introductory phrase, "Notice of Pendency of Action for" from the title of the document. Petitioners seize on this omission to argue that the lis pendens was void and invalid because the proof of service did not identify the document as a "notice of pendency," but instead reflected service of a copy of the original complaint in this case. They do not, however, assert that they were never served the notice of pendency. Indeed, it is quite clear that petitioners were served the notice of pendency, with a proof of service (which was also recorded in the county clerk's office with the lis pendens), even if the proof of service was missing the words, "Notice of Pendency of Action for," because they filed the entire set of documents as exhibits in both the motion to expunge in the superior court and in their record in this court.
On petitioners' motion to expunge in superior court, that court found that real parties had substantially complied with section 1013a, relying on Biddle v. Superior Court (1985) 170 Cal.App.3d 135. There, two sellers of real estate sought a writ of mandate after the superior court expunged their lis pendens against the buyers on the buyers' third motion to do so, in which they raised technical compliance with service requirements under former section 409 for the first time, more than a year after the lis pendens was filed. The reviewing Court of Appeal issued a writ of mandate requiring the superior court to vacate its order of expungement and to enter a new order denying it. (Id. at p. 138.) The Court of Appeal reasoned that, first, the plaintiffs there had substantially complied with the mailing requirement and, second, that the defendants waived any defects. (Id. at pp. 137-138.) Here, petitioners raise two more recent cases from this court, attempting to bring the superior court's decision into question. However, both cases are distinguishable.
In Carr v. Rosien (2015) 238 Cal.App.4th 845 (Carr), the appellant had filed a quiet title action and lis pendens against two interested parties, Ortiz and Colón, but did not mail the lis pendens to them. Instead, he filed a declaration that their addresses were unknown (id. at p. 848); had he searched the county assessor's records, as he was required to do under sections 405.22 and 405.23, he would have found a listing of their addresses. Colón transferred her half of the property to another individual (who burdened his interest with a secured loan). (Carr, at p. 848.) The appellant then won a judgment in the action, quieting title in him as against Colón and Ortiz. The appellant then brought another quiet title action against the new interested parties arising from the transfer from Colón. The new interested parties argued the lis pendens originally filed against the property was void because it had not been mailed to Colón's address. (Ibid.) The superior court entered judgment for the new interested parties. On appeal, this court considered Biddle, but found that in Carr, there was no substantial compliance in the first instance due to the failure to mail the lis pendens to Colón. (Id. at pp. 855-857.) Biddle was not implicated and this court affirmed the superior court's judgment.
In Rey Sanchez Investments v. Superior Court (2016) 244 Cal.App.4th 259 (Rey Sanchez Investments), the real party in interest sued two defendants for contract claims and declaratory relief. (Id. at p. 261.) It recorded a lis pendens the same day, but did not accompany it with any proof of service. The petitioner was granted leave to intervene and moved to expunge the lis pendens as completely void due to invalid service under section 405.23. (Ibid.) The trial court denied the motion to expunge because petitioner had received actual notice and waived defects in service by waiting more than six months to file the motion to expunge, relying on Biddle. (Rey Sanchez Investments, at p. 262.) This court found that the lis pendens was " 'void and invalid' " as to the petitioner because (a) no proof of service was recorded with the lis pendens and (b) once petitioner became a party to the action, service " 'in the same manner' " as section 405.22 prescribes when a lis pendens is first recorded was not " 'made immediately' " on petitioner. (Id. at p. 263.) This court then issued a peremptory writ of mandate in the first instance, directing the superior court to vacate its order denying the motion to expunge and enter an order granting it. (Id. at p. 265.)
In both cases, this court considered whether Biddle was still viable following the 1992 amendments to the Code of Civil Procedure that replaced the former section 409 with the current sections 405.22 and 405.23. This court acknowledged that the Legislature expressly reserved the principle of waiver articulated in Biddle, but did not address the principle of substantial compliance. (Rey Sanchez Investments, supra, 244 Cal.App.4th at p. 264; Carr, supra, 238 Cal.App.4th at p. 855.) However, given the facts of those cases, we found it unnecessary to determine Biddle's continued viability as to substantial compliance. That remains the case here. Both Carr and Rey Sanchez Investments involved major, structural noncompliance with service requirements: a total lack of any proof of service or the complete failure to serve an interested party, for example. Here, in contrast, the issue not that there was no proof of service recorded or served, and not that a party did not receive service, but that six words were missing from the description of the document on the proof of service: "Notice of Pendency of Action for." This is mundane and does not implicate Biddle's analysis.
"It is the fact that service was made, rather than the proof of service, that vests the court with jurisdiction to act. [Citations.] The jurisdiction of the court does not depend upon the preservation of the proof of service but upon the fact that service has been made. [Citations.]" (Otsuka v. Balangue (1949) 92 Cal.App.2d 788, 790-791 [affidavit using language different from that specified in section 1013a not defective so long as service was effected].) Certainly, where service is made by mail, strict compliance with section 1013a is required. (West v. West (1979) 92 Cal.App.3d 120, 125.) Yet, "[a]lthough we agree that 'strict compliance' with sections 1013 and 1013a is required, we decline to equate 'strict compliance' with absurdity in compliance. The rule of 'strict compliance' is satisfied by substantial, without literal, compliance," especially where the record shows that service of a copy of the notice was received by mail. (Douglas v. Janis (1974) 43 Cal.App.3d 931, 937 (Douglas); see Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 443 ["even where proof of service must conform to the requisites of Code of Civil Procedure section 1013a, only substantial compliance is required"]; Conservatorship of Wyatt (1987) 195 Cal.App.3d 391, 397; Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58-59.)
Here, petitioners presumptively received the notice of lis pendens, and the court would conclude on that basis alone that they were properly served. (Conservatorship of Wyatt, supra, 195 Cal.App.3d at p. 397.)
However, even more significantly, the record includes a signed return of certified mail receipt for a delivery to Rolf Kampa and Isabel Amanda Kampa, petitioners, as exhibit 6 to the declaration of Michael A. Rivera, real parties' attorney. Mr. Rivera attested, "3. Attached hereto as Exhibit 6 is a true and correct copy of the certified mail receipt and return receipt card signed by defendant Rolf Kampa and received by my office from the U.S. Post Office reflecting service of the Notice of Pendency by certified mail, return receipt requested upon the defendants." Petitioners attack this statement by claiming it was an attempt by Mr. Rivera to authenticate Rolf Kampa's signature. The superior court initially sustained petitioners' objection to the declaration on that point, but later amended its ruling following oral argument to agree with real parties' "argument and the evidentiary objection to Rivera's declaration should be sustained only to the extent it purports to articulate Rolf Kampa's signature and otherwise overruled." This court views Mr. Rivera's statement as nothing more than authenticating his firm's receipt of the return receipt card, with a tracking number matching the certified mail receipt, bearing a signature for delivery of the Notice of Pendency to petitioners.
The bottom line is, in this court's view, the lis pendens was served on petitioners. Petitioners' strained argument that it was not, or that there is no proof that it ever was served because of a few words missing from the description of the document in the proof of service, not only exalts form over function, but seeks to impose "absurdity in compliance" with section 1013a. (Janis, supra, 43 Cal.App.3d at p. 937.)
The superior court did not err.
III
DISPOSITION
The petition for writ of mandate is denied. Petitioners to bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. FIELDS
J.