Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC326939., Haley J. Fromholz, Judge.
Graham & Associates, Bruce N. Graham for Plaintiff and Appellant.
Squire, Sanders & Dempsey, Steven A. Lamb, Michael T. Purleski, Douglas Rovens for Defendants and Respondents.
BOREN, P.J.
Plaintiff Motors Insurance Company (Motors Insurance) paid approximately $479,000 in policy benefits to its insured, Cormier Chevrolet, and then in the present subrogation action sued defendants BP West Coast Products, LLC, and Atlantic Richfield Company (collectively, BP) for damages sustained to the paint finish of vehicles owned by Cormier Chevrolet. Motors Insurance alleged that “flaring” events from the smokestacks at a BP petroleum refinery located near Cormier Chevrolet resulted in waste products which mixed with moisture in the air, fell as acid rain on Cormier Chevrolet vehicles, and damaged the clear coat finish on the vehicles.
Contrary to Motors Insurance’s contention, it failed to establish a triable issue of fact as to the cause of the damage to the vehicles. Causation was not established because Motors Insurance presented no evidence of the specific dates that flaring occurred at the refinery, no evidence of weather conditions relevant to the dates of flaring alleged in the complaint, and no evidence of damage to any vehicle which could be associated with any particular flaring date alleged in the first amended complaint.
Moreover, Motors Insurance’s theory that BP’s willful falsification of flaring and emission records should result in a presumption that the dates of flarings corresponded with the dates of reported damage at the dealership is without merit. Apart from belatedly raising that issue for the first time on appeal, BP’s inaccurate monitoring and reporting of sample emissions discharged did not entail any falsification of the number of flaring episodes and thus did not support the adverse presumption sought. Finally, the trial court did not abuse its broad discretion in refusing to grant Motors Insurance’s untimely request for a continuance for a second chance to refute BP’s motion for summary judgment.
FACTUAL AND PROCEDURAL SUMMARY
Motors Insurance sued BP alleging causes of action for private nuisance, trespass, negligence, negligence per se, strict liability for ultra hazardous activities, and concealment. Motors Insurance’s complaint asserted that BP emitted chemical pollutants into the atmosphere in a process known as flaring, and that such flaring incidents occurred at the refinery on “December 11-13, 2004, October 2-4, 2004, May 29-31, 2004, and May 30-June 1, 2003.” It further alleged that the chemical pollutants emitted through the flaring process combined with other particles in the air to form acidic droplets known as acid rain. The acid rain then drifted in the wind from BP’s refinery toward Cormier Chevrolet, where it fell upon the vehicles in the dealership’s car lot and damaged the paint and finish on the vehicles. Motors Insurance paid for the damage to the vehicles and then charged BP with responsibility for the alleged damage.
After commencing its case, Motors Insurance propounded no discovery on BP. Approximately 10 months after filing of the first amended complaint, BP served special interrogatories and requests for production of documents on Motors Insurance, seeking documents and factual predicates supporting the claim that acid rain was generated by BP, and that it purportedly traveled to Cormier Chevrolet and damaged its vehicles. After Motors Insurance objected to discovery requests and sought several extensions for its responses, BP moved to compel disclosure of any documentary evidence and factual predicates supporting Motors Insurance’s claims.
Motors Insurance’s responses to BP’s discovery requests asserted a work product privilege, but also specifically admitted that Motors Insurance had no documentary evidence that flaring events at BP’s refinery had emitted the chemical precursors to acid rain, that such emissions turned into acid rain, or that such acid rain traveled to Cormier Chevrolet and fell upon its vehicles. Cormier Chevrolet noted that the droplets on its vehicles were “yellow/brown stained” and “blue stained” in color, but acknowledged that it was “presently unable to identify the chemical composition of the droplets which are believed to cause the acid rain.”
Moreover, BP made discovery requests for documentary evidence relating to wind direction and speed to support the claim that emissions from BP’s refinery ultimately landed on the Cormier Chevrolet lot and for photographs of any vehicles damaged. In response to both requests, Motors Insurance asserted the work product privilege, but also stated that it had “no such discoverable documents in its possession, custody or control.”
When asked during discovery to identify the specific dates and times of the flaring at the refinery upon which it based it claim, Motors Insurance reiterated substantially the identical dates and times stated in the first amended complaint as to three of the four dates cited. However, it did not reiterate one date (December 11-13, 2004) and added a new date (November 6-7, 2004). In response to BP’s request for discovery relating to “testing and analysis of the paint of the vehicles that [Motors Insurance] claim[ed] were damaged,” Motors Insurance made available one vehicle hood for inspection by BP’s expert.
BP moved for summary judgment against Motors Insurance on the following grounds: (1) the BP refinery was not the source of the spot residue appearing on the exemplar Cormier Chevrolet vehicle hood provided by Motors Insurance; and (2) Motors Insurance did not have and could not obtain evidence that BP flaring events caused the alleged damage to the Cormier Chevrolet vehicles.
In support of its motion for summary judgment, BP provided a declaration from its chemist, Eugene Zaluzec, Ph.D., who tested the spots on the vehicle hood provided by Cormier Chevrolet. Zaluzec inspected the vehicle hood provided by Cormier Chevrolet and observed some faint bluish tinted spots which were visible when the hood was tilted at a certain angle to the light. In his laboratory, Zaluzec viewed the spots with a microscope. The spots sat on top of the clear coat finish with no depressions or irregularities in the clear coat, “indicating that the clear coat had not been compromised.”
The spots were gummy and did not scrape off easily, so Zaluzec tested the spots for solubility but was unable to wipe them off with water or soap. He thus determined the spots were made of a compound that was not water based. Zaluzec then treated the spots with an application of heptane to determine if the substance was hydrocarbon based; i.e., derived from crude petroleum, as were the vast majority of fuel products made at the BP refinery. However, the spots did not come off with a heptane solution, indicating they were not hydrocarbon based.
Zaluzec indicated that the BP refinery also produced products that were not hydrocarbon based. The refinery also produced products that were carbon dioxide based (used by the beverage industry), sulfur based (used by the fertilizer industry), and hydrogen based (used in refining gasoline). However, hydrogen and carbon dioxide are both gases that do not form into spots, and sulfur is yellow and forms into a crystalline salt that can be scraped off, and thus is inconsistent with the bluish spots Zaluzec observed.
Zaluzec then took a Q-tip dipped in methanol and successfully removed the spot with no visible damage to the clear coat underneath the spot. He thus concluded the spot was polar in nature, meaning it contained oxygen and was not a simple hydrocarbon. Zaluzec then extracted the substance on the spots for further testing by gas chromatography and mass spectrometry. The results of the testing revealed the presence of phenol and urea. Phenol is commonly associated with disinfectants for toilets and cesspools. Urea is commonly associated with human waste byproduct or is synthetically manufactured and used as fertilizer. Neither phenol nor urea is associated with any of the refinery processes or products at the BP refinery.
Zaluzec returned to Cormier Chevrolet the vehicle hood which had the bluish spots on it. He explained to the owner of Cormier Chevrolet the tests he had performed and his conclusion that the bluish spotting was not consistent with refinery products, and that the spots were removable with an alcohol based solution, such as methanol, which did not damage the clear coat. According to Zaluzec, the bluish spotting could not have been from “acid rain” caused by the BP refinery because acid rain is a sulfuric acid, which would leave behind sulfate salts removable by water, and the spotting in question was not removable by water.
Zaluzec thus concluded that based on his testing and analysis, there was no evidence suggesting that the bluish spotting on the Cormier Chevrolet vehicles could have come from the BP refinery. He also noted that there was another major refinery just across the street from the BP refinery, two other refineries within 10 miles, and a significant number of other industrial complexes within five to 10 miles of the BP refinery. Additionally, there was a Cruise America RV rental dealership next to Cormier Chevrolet. Zaluzec speculated: “It would seem plausible to me that the urea may have originated from there since urea is waste that is in RV holding tanks and/or a RV dump station they are likely to have onsite. The phenol could have come from the same location as they are surely using antibacterial disinfectants for cleaning the holding tanks on the RV rentals.”
In its opposition to BP’s motion for summary judgment, Motors Insurance provided no evidence supporting its assertion that flaring events occurred on the dates alleged in the complaint or on any other specific dates. Its opposition to summary judgment was supported principally by declarations from a materials expert and an emissions expert.
Motors Insurance’s references to record evidence of flaring events are references to quarterly Flare Monitoring Emissions Summaries by the South Coast Air Quality Management District (SCAQMD). However, the trial court refused to take judicial notice of those reports which, in any event, simply disclose quarterly emissions volumes from the various BP refinery smokestacks and do not reveal any evidence of individual flaring events or dates.
As indicated in the declaration and deposition testimony of Motors Insurance’s expert materials engineer, Bruce Agle, on June 29, 2004, he tested the hood from a vehicle that had been on the Cormier Chevrolet lot for approximately a week. Agle did not test any other vehicle at any other time. Although Agle declared that he “learned” from Cormier Chevrolet employees that vehicle damage occurred shortly after BP refinery flaring episodes which caused ash to fall from the sky, the particular vehicle Agle tested was not on the Cormier Chevrolet lot during the time periods of the flaring events alleged in the complaint. Agle examined the vehicle hood under a scanning electron microscope and determined that the spotted areas had been degraded with the discoloration not merely sitting on top of the clear coat.
Agle tried to determine the cause of the damage to the hood by attempting to replicate the damage. He found that exposure to a low concentration of sulfuric acid would cause the same kind of white haze, bluish spotting, and pitting he observed on the sample vehicle hood. When he tested the hood by applying some phenol, the damage was much more aggressive. Agle also rinsed the stained areas with deionized water, analyzed the rinse with ion chromatography, and determined from the residue that sulfuric and nitric acid had caused the damage. He opined that sulfur dioxide and nitrogen oxides, the byproducts of crude oil refining, were emitted from the refinery and combined with water vapor to form sulfuric acid and nitric acid, which then fell upon the vehicle hood and ate into the clear coat finish. However, Agle conducted no analysis of BP’s refinery emissions or location, relevant wind patterns, or the timing of flaring and the appearance of damage, and thus provided no evidence that the BP refinery emitted any chemical predicates to acid rain on or about the date the inspected vehicle hood was damaged.
In his declaration opposing summary judgment, Motors Insurance’s emissions expert, Paul Rosenfeld, opined that sulfur and nitrate emissions generated by the flaring events at the BP refinery could evolve into acid rain. He reviewed and summarized SCAQMD Rule 1118 records (industry emission records required by the SCAQMD) for the BP refinery and weather data from the National Climatic Data Center, and opined that it was “evident” the Cormier Chevrolet vehicles were exposed to acid rain generated by the BP refinery.
We note that the trial court denied Motors Insurance’s request for judicial notice of the records of the SCAQMD on the grounds they were not authenticated. Motors Insurance does not contest this ruling on appeal.
The Rule 1118 records that Rosenfeld reviewed and summarized disclosed only quarterly emissions data from the various BP refinery smokestacks. The records did not identify any specific flaring events or dates.
The weather patterns Rosenfeld analyzed led him to surmise that BP was “responsible” for the damage to the vehicles. However, only one of the five dates for which Rosenfeld reviewed weather data correlated with a date alleged in the complaint as a flaring episode. As to the weather conditions on that one date, December 13, 2004--which was potentially relevant to the “December 11-13, 2004,” flaring date alleged in the complaint--Rosenfeld’s declaration indicated that the wind on December 13 was actually blowing from northwest to southeast, and away from Cormier Chevrolet. Although Rosenfeld asserted that a “documented” flaring event occurred at the BP refinery on June 21, 2004 (just prior to testing the sample vehicle’s hood), there was no reference to a factual basis for that conclusion.
The trial court granted BP’s motion for summary judgment. The court recognized that the only evidence of vehicle damage consisted of a vehicle that had resided on the Cormier Chevrolet lot between approximately June 21 and June 30, 2004, that the flare monitoring report did not specify any individual dates on which emissions occurred, and that there was no foundation for Rosenfeld’s assertion that on June 21 a flaring event purportedly occurred. The trial court also denied for lack of authentication Motors Insurance’s request for judicial notice of the flare monitoring reports provided by BP to the SCAQMD, on which Rosenfeld had relied. Since there was no evidence that flaring had occurred during the relevant time when Motors Insurance’s expert tested the sample vehicle from the Cormier Chevrolet lot, the trial court ruled Motors Insurance had failed to establish a triable issue of fact as to the causation element of its causes of action.
Finally, the trial court’s order granting summary judgment recognized that Motors Insurance had “ample time,” approximately 10 months, to conduct discovery and to gather evidence in support of its claims that specific BP flaring events caused the alleged vehicle damage. Because Motors Insurance could not produce evidence of any flaring events, other than those dates alleged in its discovery responses, and it did not seek a continuance for further discovery, the trial court granted summary judgment in favor of BP.
DISCUSSION
I. The standard of review.
We review this matter de novo and determine the appeal in accordance with the customary rules of appellate review following summary judgment. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857 (Aguilar).) The general rule is, of course, that summary judgment is appropriate where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” (Code Civ. Proc., § 437c, subd. (c).) Except for questions of law applied to undisputed facts, an appellate court cannot consider arguments or theories raised for the first time on appeal, and possible theories not fully developed or factually presented to the trial court cannot create a triable issue of fact on appeal. (See Johanson Transport Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588.)
II. Motors Insurance failed to establish a triable issue of fact as to the cause of the damage to the Cormier Chevrolet vehicles.
The burden of proof.
We acknowledge, of course, that a party moving for summary judgment bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) And, “from commencement to conclusion, 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.” (Ibid.)
However, to make this showing, a defendant may rely on the pleadings, declarations, judicial admissions made by the plaintiff, deposition testimony, and “responses or failures to respond to discovery.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375; see Code Civ. Proc., § 437c, subd. (b).) The defendant is not required to conclusively negate an element of the plaintiff’s cause of action, but may instead prevail by showing that the plaintiff cannot establish at least one element of its cause of action. (Aguilar, supra, 25 Cal.4th at pp. 853-854.) The defendant’s mere argument that plaintiff’s case is deficient is inadequate; rather, a defendant choosing this course must “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence--as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 853.)
Thus, “the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff’s case.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482, original italics.) “When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet [its] burden of proof regarding an essential element of [its] case, all other facts are rendered immaterial.” (Ibid.) “The plaintiff may not rely on [its] pleadings alone, but must file opposition to the motion, with affidavits setting forth specific facts demonstrating that a triable issue of material fact exists as to the cause of action . . . .” (Eisenberg v. Alameda Newspapers, Inc., supra, 74 Cal.App.4th at p. 1375.)
In the present case, Motors Insurance ultimately had the burden to establish causation as an element of its claims against BP. (See Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415.) When a plaintiff produces no substantial evidence of causation, then judgment against it is proper. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)
Motors Insurance failed during discovery to produce evidence of a causal link between the flaring events at the BP refinery and the damage to the vehicles.
“Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions.” (Burke v. Superior Court (1969) 71 Cal.2d 276, 281.) If a plaintiff fails to provide “complete factual responses” to discovery propounded by a defendant, that failure constitutes affirmative proof that the plaintiff does “not possess, and cannot obtain, the evidence necessary” to prevail on its claims. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 302.) Consequently, summary judgment in favor of the defendant would be warranted. (Ibid.)
Here, the only relevant evidence provided during discovery by Motors Insurance was a sample vehicle hood from the Cormier Chevrolet lot. However, BP’s expert (Zaluzec) established that the deposits on that vehicle hood were not the result of any products from the BP refinery or from acid rain, but rather were from the substances phenol and urea. In its opposition to BP’s motion for summary judgment, Motors Insurance did not counter this evidence because its expert (Agle) did not test the sample vehicle part provided to BP’s expert (Zaluzec). Thus, the only evidence provided during discovery by Motors Insurance did not point to BP as the source of the damage claimed in the first amended complaint.
On June 30, 2004, Agle received and then tested the front hood, passenger headlight cover and bumper from a Chevrolet Impala, as well as the rubber bumper from a truck. In June of 2003, Zaluzec received and then tested a panel from a Chevrolet Corvette.
In its opposition to BP’s motion for summary judgment, Motors Insurance failed to establish causation between BP’s flaring events and the damage to the vehicles because it presented (1) no evidence of the specific dates of flaring at the refinery, (2) no evidence of relevant wind conditions, and (3) no evidence of vehicle damage related to any flaring event.
Motors Insurance failed to produce evidence directed to “the issues raised by the pleadings” (Keniston v. American Nat. Ins. Co. (1973) 31 Cal.App.3d 803, 812), because it presented no evidence of flaring occurring on the dates alleged in its first amended complaint. Similarly, on appellate review we identify the issues framed by the pleadings because it is these allegations to which the motion must respond (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503), and we find no evidence presented to the trial court of specific dates of flaring at the BP refinery.
Although Motors Insurance’s emissions expert (Rosenfeld) reviewed flare monitoring emission records, he reviewed quarterly emission summaries, which did not isolate emissions or flaring events from the BP refinery on any specific date. Additionally, Rosenfeld relied on SCAQMD records which the trial court declined to judicially notice because authentication was lacking. Motors Insurance does not challenge the trial court’s ruling refusing to take judicial notice of those records. On appeal, it thus forfeits the issue (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125), and an appellate court is precluded from considering such evidence to which an objection was sustained. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1035.) Rosenfeld’s expert opinion thus could not establish specific instances of BP refinery flaring events. (See Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
Similarly, as to all but one date (i.e., December 13, 2004), Motors Insurance provided no evidence of the weather conditions pertinent to the dates alleged either in the first amended complaint or in its discovery responses. Instead, Rosenfeld noted ambient air conditions and wind directions for four time periods (i.e., June 16, 2003; June 21, 2004; October 25, 2004; and February 28, 2005), which were irrelevant to dates of alleged flaring incidents. As to the one date alleged in the first amended complaint for which Rosenfeld provided relevant weather data (December 13, 2004), Rosenfeld’s declaration indicated that the wind on that date was actually blowing away from the northwest and thus away from the Cormier Chevrolet lot.
Thus, apart from the lack of any specific dates of flaring noted in the Rule 1118 records upon which Rosenfeld based his opinion and the lack of judicial notice of those records, the time frames and wind direction noted lead to the ineluctable conclusion that Rosenfeld provided no foundation for his conclusion that the BP refinery was the purported source of the acid rain. The trial court properly excluded the causation opinion set forth in Rosenfeld’s declaration because it was based on “speculation and surmise” with “‘no factual basis for the expert’s opinion or for [the plaintiff’s] general assertion of causation.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775.)
Finally, Motors Insurance presented no evidence of vehicle damage relevant to any particular flaring date asserted in its first amended complaint. Motors Insurance’s materials expert (Agle) did not examine the car panel it had provided during discovery to BP’s expert (Zaluzec), nor did Motors Insurance test any vehicle located on the Cormier Chevrolet lot during the time frame of any alleged flaring event. Indeed, Motors Insurance’s materials expert tested a car that was not even on the Cormier Chevrolet lot during the dates of flaring alleged in the first amended complaint, and thus Motors Insurance had no evidence of what might have been deposited on a vehicle relevant to those dates. (See Pacific Gas & Electric Co. v. Zuckerman, supra, 189 Cal.App.3d at p. 1135.)
Accordingly, based on the admissible evidence presented by Motors Insurance, it did not and could not link the asserted flaring dates with any relevant weather conditions or with any alleged damage, and it thus presented no evidence that BP’s refinery was the source of the purported acid rain spotting of the Cormier Chevrolet vehicles. Absent such evidence or the ability to obtain such evidence, summary judgment was properly granted in favor of BP. (Aguilar, supra, 25 Cal.4th at pp. 853-854.)
III. Motors Insurance’s theory of falsified Rule 1118 SCAQMD records was not raised before the trial court and does not establish a triable issue of fact as to causation.
For the first time in this appeal, Motors Insurance contends that it did not have evidence of BP’s flaring events because BP falsified records that it submitted to the SCAQMD. Motors Insurance thus urges that it is entitled to an inference or presumption that the dates of flaring and consequent emissions corresponded with the dates of damage to the vehicles. However, it is well settled that an appellate court will consider only those facts that were before the trial court and will disregard any new factual allegations made for the first time on appeal. Theories not presented below cannot create a triable issue of fact on appeal. (Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 661.) Because Motors Insurance did not present this falsification theory to the trial court, it may not be used on appeal to overturn the trial court’s grant of summary judgment in favor of BP.
Even assuming arguendo we were to consider on appeal the belated claim of falsification of records, it would not affect the outcome of this appeal, because there was no evidence that BP intentionally misreported any flaring events. As indicated in the deposition of the SCAQMD compliance officer (Zacharie Muepo), although BP failed to sample emissions discharged during flaring events and sometimes failed to monitor the pilot light on its smokestacks, he had no evidence that BP underreported the number of flaring events. And the compliance officer specifically acknowledged that BP had not “intentionally” failed to report any of the required information.
Therefore, Motors Insurance’s belated falsification theory provides no basis to overturn the trial court’s grant of summary judgment in favor of BP.
IV. The trial court did not abuse its broad discretion in refusing to grant Motors Insurance additional time to provide a declaration regarding the chain of custody for the vehicle hood its expert (Agle) had inspected.
Motors Insurance contends, in essence, that it was surprised by BP’s objection in its reply to Agle’s expert conclusion of damage to a Cormier Chevrolet vehicle. BP objected that the vehicle inspected was not on the dealership’s lot near the time of one of BP’s flaring events. According to Motors Insurance, because of this unanticipated objection, it sought and was improperly denied a continuance to produce a chain of custody declaration, ostensibly to connect the vehicle tested by Agle to the Cormier Chevrolet lot.
However, Motors Insurance did not timely request a continuance to conduct additional discovery (see Code Civ. Proc. § 437c, subd. (h)), but instead waited until the time of the hearing on BP’s summary judgment motion to seek a continuance. As the trial court remarked to counsel for Motors Insurance, “Mr. Graham, you have had an opportunity [to present other evidence.] The train’s been coming down the tracks for a long, long time. So don’t--please don’t tell me you can submit all new matter.”
Motors Insurance had an abundant opportunity to evaluate its ability to oppose BP’s motion, and it put forth its best evidence in opposition without requesting a continuance for additional discovery. It thus waived any objection to the trial court’s ability to rule on a fully briefed motion for summary judgment. (See Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224.) Under the circumstances, the trial court did not abuse its broad discretion in denying the request for a continuance. (See Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.