Opinion
A144748
11-29-2017
CHARLYNN THROCKMORTON, Plaintiff and Appellant, v. JUAN ANTONIO SORIA et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. CIV MSC14-01056)
Plaintiff Charlynn Throckmorton brought suit against the buyers of two parcels of real property located in Baja, Mexico, for breach of a promissory note the defendants gave her in connection with their purchase of the property from her. She now appeals an order granting the defendants' motion to dismiss her complaint, which the trial court issued in response to an alternative writ of mandate from this court. The dismissal motion asserted two grounds: that dismissal was mandatory pursuant to a forum selection clause designating Mexico as the proper place for suit, and dismissal was discretionary pursuant to the doctrine of forum non conveniens. Throckmorton also challenges the trial court's subsequent award of $68,209 in attorney fees to the defendants. We affirm the trial court's dismissal of this action, and we lack jurisdiction to consider Throckmorton's challenge to the attorney fees award.
BACKGROUND
Throckmorton commenced this action in June 2014 in Contra Costa County Superior Court, when she filed a complaint for breach of contract and related claims against Juan Soria and Martha Gurrola-Soria alleging they were in arrears on a $200,000 promissory note they executed in her favor, secured by a deed of trust. The sole contract attached to the complaint was the note.
The defendants moved to dismiss the action (or, alternatively, to stay it), contending that they issued the note in connection with their purchase of two parcels of Mexican real estate from Throckmorton, and that their two written purchase agreements (one for each parcel) have a mandatory forum selection clause providing for exclusive jurisdiction in the courts of Tijuana, Mexico. As an alternative ground, the defendants also argued that the Mexican courts are the convenient forum, basing this argument principally on the location of non-party witnesses and evidence relating to their anticipated defense to non-payment of the note, which concerned the substantial costs they had incurred to remedy undisclosed defects in the properties and local building code violations the seller had not disclosed either.
The forum selection clause of each purchase agreement provides, identically, as follows: "TWELFTH.- JURISDICTION. The parties expressly agree to submit any claims arising out of the interpretation or non-compliance with this agreement to the jurisdiction of the Courts of the city of Tijuana, Baja California, Mexico, waiving any other venue that may correspond [sic] them in virtue of their current or future domiciles."
In support of their dismissal motion, the defendants introduced undisputed evidence that it was Throckmorton, not they, who was responsible for including this forum selection clause in their purchase agreements. Specifically, Juan Soria stated in a declaration that Throckmorton had directed him and his wife to sign the purchase agreements (i.e., at the Tijuana office of the property's developer), that they had no input in preparing the purchase agreements and that they signed those agreements without making any changes.
In opposition, Throckmorton focused almost entirely on the doctrine of forum non conveniens and raised just a single objection to enforcement of the forum selection clause. Captioned under the heading "the promissory note sued on does not provide for Mexico as the forum for litigation," and supported by no legal authority, that objection consisted of all of nine sentences. It read as follows: "In this case the defendants are attempting to confuse the court by suggesting that there is a forum selection clause at issue. There is not. As indicated above the promissory note is the only document that is at issue with this case. It does not have a forum selection provision in it. There is no suit filed for any breach of contract or misrepresentation or failure to disclose in Mexico. Importantly, there was no complaint made by the defendants until it came time for them to pay the balloon payment. As stated in Mr. Bustamante's declaration there is no potential cause of action based upon the 2007 sale agreement. [¶] Additionally, there is nothing in the promissory note that would tie the obligation of defendants to pay according to the terms of the note to anything regarding the 2007 sales contract. It is a separate, distinct, enforceable obligation on the part of the defendants."
The trial court initially denied the dismissal motion. But then, on February 10, 2015, the trial court vacated its order and granted the motion after the defendants filed a writ petition in this court challenging the denial, and this court issued an alternative writ of mandate directing the trial court either to set aside its initial order denying the motion and to grant the motion or to show cause as to why a peremptory writ of mandate should not issue.
We subsequently discharged the alternative writ of mandate and dismissed the writ petition as moot.
The defendants then moved for an award of contractual attorney fees. None of the motion papers (in support or in opposition) are in the record. A notation in the register of actions reflects only the trial court's ruling, awarding the defendants $68,209.
Subsequently, Throckmorton timely appealed the February 10, 2015 order of dismissal.
DISCUSSION
I.
The Trial Court Properly Enforced the Forum Selection Clause.
The trial court granted the dismissal motion on unspecified grounds, after this court issued its alternative writ of mandate. The trial court was not required to make an express ruling on the motion, and we conclude its ruling may be affirmed, at a minimum, on the basis of the forum selection clause in the parties' purchase agreements. (See Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1676.)
"California courts routinely enforce forum selection clauses even where the chosen forum is far from the plaintiff's residence. [Citations.] [¶] When a forum selection clause appears in 'a contract entered into freely and voluntarily by parties who have negotiated at arm's length, . . . forum selection clauses are valid and may be given effect, in the court's discretion and in the absence of a showing that enforcement of such a clause would be unreasonable.' [Citation.] This rule 'accords with ancient concepts of freedom of contract and reflects an appreciation of the expanding horizons of American contractors who seek business in all parts of the world.' " (Net2Phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 588.) Here, Throckmorton advances three reasons why the parties' forum selection clause must not be enforced, and we reject them all.
First, she argues that under California law she was authorized to sue only on the note. This argument consists of a three-and-a-half page discussion in her opening brief of secured creditor remedies that has nothing to do with forum selection clauses (and that contradicts her position, stated repeatedly, that this was not a secured transaction). As the defendants say in their respondents' brief: "Whether she can sue on her Note, be it secured or not, is entirely irrelevant to the matter of where she is legally allowed to sue—the where is not wherever she wants and it is not where she has freely, voluntarily and expressly contracted not to sue." We agree with the defendants. Whatever the legal basis for Throckmorton's lawsuit, the issue framed by the defendants' dismissal motion is not whether this suit may be brought but where. Pages 12 to 15 of her opening brief (and 3 to 6 of her reply brief) do not address that question; none of her cited authorities even concerns the issue of proper forum. So this argument falls short of meeting Throckmorton's burden of demonstrating error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
She says in her reply brief that enforcement of the forum selection clause "violated [her] right to sue on the Note" but does not explain how. And it doesn't: dismissal of this case merely requires her to refile her action on the note in a Mexican forum.
Compounding the problem, Throckmorton didn't oppose the dismissal motion below on the basis of her "right-to-sue-on-the-note" theory. So we could rule that this entire issue, such as it is, also has been forfeited. " '[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would " ' "permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." ' " ' " (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
Next, as she did below, Throckmorton argues that the only contract at issue in this case is the promissory note and that it contains no forum selection clause. But she neither cites nor discusses any legal authority bearing on whether the forum selection clause in the purchase agreements nonetheless applies, which is the issue squarely raised by the defendants' dismissal motion. We could rule that this omission alone forfeits the issue. "Contentions on appeal are waived by a party who fails to support them with reasoned argument and citations to authority." (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; accord, Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) "An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873.)
The only authority she cites are two cases addressing general principles of contract law, the relevance of which she does not explain and neither of which involves a forum selection clause. (See Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 133 [discussing and applying the objective theory of contract interpretation]; Frangipani v. Boecker (1998) 64 Cal.App.4th 860, 863 [later contract supersedes earlier contract where there is an inconsistency between them].)
Instead, we reject Throckmorton's argument on the merits, because it misapprehends basic principles of contract law. As defendants argue, the note and the purchase agreements must be construed together since they arose from the same transaction (even though, as Throckmorton stresses, they were not executed contemporaneously). Throckmorton has acknowledged on multiple occasions, including in her briefs to this court, that the note was entered in connection with the purchase of the lots. (See Civ. Code, § 1642 ["Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together"]; Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 378 (Boyd) [applying this principal even where documents are not contemporaneously executed]; 1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 770, at pp. 825-826.)
Before filing suit, her attorney acknowledged in a May 28, 2014 letter to the defendants that "the Note was entered into . . . in connection with" the defendants' purchase of the two lots "which was memorialized in a contract which [sic] you entered into." In her appellate briefing, Throckmorton acknowledges (twice) that the note and purchase agreements "arose from the same real estate transaction," and similarly states the note "was part of a real estate transaction" whereby she sold the Mexican property to the defendants.
Throckmorton has no answer to Civil Code section 1642, indeed does not even cite or discuss the statute or the cases applying the rule of construction it sets forth, or even acknowledge that rule. Responding to the defendants' contractual analysis, she argues merely "there is no reason to read the note and sale agreement together because California law allows [her] to sue only on the note," citing irrelevant case law concerning common counts (see Utility Audit Co. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958), and generally asserting the purchase agreements are irrelevant. Elsewhere in her briefing, though, she herself (twice) cites California Supreme Court authority applying this very principle in a similar context (at page 12 of her opening brief, and again at page 4 of her reply brief). In First Trust Joint-Stock Land Bank of Chicago v. Meredith, supra, 5 Cal.2d 214, our Supreme Court held that the terms of a promissory note were governed by an acceleration clause contained in the parties' related mortgage deed, because "the note and mortgage should be construed together and be read as one contract." (See id. at pp. 218-219, citing, inter alia, Meyer v. Weber (1901) 133 Cal. 681, 683 [citing Civ. Code, § 1642].) So too here: all three documents in this case must be "read as one contract" (First Trust, at p. 218) such that the reference to "this agreement" in the purchase agreements' forum selection clause means the note too.
She does cite First Trust Joint-Stock Land Bank of Chicago v. Meredith (1936) 5 Cal.2d. 214 (First Trust), discussed below, but for an entirely unrelated point.
We note that the defendants did not cite Civil Code section 1642 in the trial court. However, Throckmorton does not contend its application here raises any factual issues; on the contrary, as noted, she has repeatedly admitted in her appellate briefing the documents were executed as part of the same transaction. Accordingly, we may decide this question as a matter of law because there is no conflict in any relevant extrinsic evidence (see Boyd, supra, 210 Cal.App.3d at pp. 378, 380), and we exercise our discretion to do so.
To be clear, Civil Code section 1642 does not compel courts to construe multiple agreements or documents as a single contract in all instances. Thus, where two contracts are in conflict, such as where one supersedes the other, it may not make sense to construe the two as a single contract. (See Mountain Air Enterprises, LLC v. Sundowner Towners, LLC (2017) 3 Cal.5th 744, 759.) But where, as here, there is no inconsistency between two documents executed as part of the same transaction, courts have generally construed them together such that terms of one apply to the other. (See First Trust, supra, 5 Cal.2d at pp. 218-219 [promissory note held governed by acceleration clause contained in related mortgage deed but not in note, where acceleration clause was not limited to foreclosure proceedings]; Boyd, supra, 210 Cal.App.3d at p. 378 [attorney fee provision in invoices held part of parties' related dealership agreement]; Goodman v. Community Savings & Loan Assn. (1966) 246 Cal.App.2d 13, 21-22 [deposit receipt, letters and escrow instructions taken together constituted agreement of sale, and terms of deposit receipt requiring seller to complete offsite improvements applied notwithstanding their absence from escrow agreement]; Spotton v. Dyer (1919) 42 Cal.App. 585, 588-590 [payment terms of sales agreement held applicable to promissory note executed as part of same transaction although neither instrument referred to each other; " '[w]here there is a contemporaneous written contract affecting the terms of the note, it is to be construed with the note' "].)
Here, Throckmorton repeatedly acknowledged that the note and sale agreements arose from the same transaction, and the undisputed extrinsic evidence demonstrates these documents reflect a single transaction. A March 8, 2007 letter from the Sorias to Throckmorton purports to set forth the "final terms" to which the parties had agreed "for the purchase of your property" in Mexico. It states the "Price" ($334,500), the "Down Payment" ($134,500), and the "Remaining Balance of $200,000" that is "to be financed by seller"; the terms of the financing (interest rate, amortization period, monthly payment and date for balloon payment; and addresses other terms of the purchase, such as that it "includes all furniture and appliances that are currently in the property" and how the down payment is to be made (in part by deposits and cash to the seller and in part by payment of the balance previously owed on the property by Throckmorton's mother). The letter makes plain that the purchase agreements and note were part of one transaction.
The purchase agreements are consistent with the letter. The note, which is a form document, also tracks the terms of the letter. Finally, there is nothing in the note that is inconsistent with the forum selection clause. That clause in the purchase and sale agreements is broadly worded, stating the parties' agreement "to submit any claims arising out of the interpretation or non compliance with this agreement to the jurisdiction of the Courts of the city of Tijuana, Baja California, Mexico, waiving any other venue that may correspond them [sic] in virtue of their current or former domiciles." In this circumstance where there is a provision in one of multiple documents embodying a single agreement and no conflict in reading it as applicable to the entire contract, we apply that provision to the entire contract. Just as the court in First Trust held the acceleration clause in the mortgage also applied to the promissory note, here the forum selection clauses in the purchase agreements must be understood as applying to the parties' entire agreement, including the note.
The purchase agreements appear to reflect only that part of the consideration that was neither previously paid in the form of deposits nor being financed, whereas the note reflects only the portion being financed. The previously made deposits are reflected in the letter.
Third and finally, Throckmorton argues that enforcement of the forum selection clause would be unreasonable, for reasons that are unsupported by any legal authority, record citations or indeed reasoned argument. But to start with, she did not raise the unreasonableness issue below, which ordinarily we would review for an abuse of discretion. (See America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 9, disagreeing with Cal-State Business Products & Services, Inc. v. Ricoh, supra, 12 Cal.App.4th at pp. 1680-1681 [substantial evidence review]; accord, Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 148 [discussing and adopting abuse of discretion standard as the majority view].) Because, again, Throckmorton did not raise this issue below, we could decline to address it on the ground that she has forfeited it. (See In re Aaron B., supra, 46 Cal.App.4th at p. 846.)
We will exercise our discretion to consider it, but we reject it on the merits. She does not cite any authority reversing a trial court's enforcement of a forum selection clause as unreasonable, and thus has failed to support her position with any pertinent legal authority. (See Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at p. 1303; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.) In addition, her conclusory assertions of unreasonableness are unpersuasive on their face.
Throckmorton says enforcement would be unreasonable for three reasons. First, she asserts the forum selection clause is contained in the purchase agreements, not the note—a distinction that, as we have already discussed, is irrelevant as a matter of basic contract law, and in all events sheds no light on the alleged unreasonableness of a Mexican forum. Second, she contends she has no security interest in the two parcels—a factual assertion that we disregard because it is not supported by any citations to the record (which is a failing throughout much of her briefing), and that in any event does not have anything to do with the unreasonableness of a Mexican forum. Third, she argues the defendants' supposed claims against her are "spurious at best" and barred by the statute of limitations under Mexico law. With respect to this last point we would simply say, we are in no position to judge the merits of those issues on a motion to dismiss this lawsuit in favor of the parties' chosen foreign forum. They have no bearing on whether the forum selected by these parties is reasonable.
"The rules of court require litigants to '[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.' (Cal. Rules of Court, rule 8.204(a)(1)(C).) 'We may decline to consider passages of a brief that do not comply with this rule.' " (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 556, fn. 1.) "We are not required to make an independent search of the record" ourselves when a litigant fails to furnish appropriate record citations. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656.)
She supported this assertion in the trial court by means of a relatively terse declaration from her Mexican lawyer to which the defendants objected on various grounds. The trial court did not rule on most of the defendants' objections, and instead expressly reserved a ruling on them because "the warranty issues are not relevant to [a] decision on this motion." It likewise is unnecessary for this court to decide the admissibility of her attorney's declaration, or any portion of it, because neither party has briefed the question, and furthermore we agree with the trial court the merits of this dispute are not at issue.
Enforcement of a forum selection clause is unreasonable if the party opposing it demonstrates that the selected forum "would be unavailable or unable to accomplish substantial justice." (Smith, Valentino & Smith (1976) 17 Cal.3d 491, 494; CQL Original Products, Inc. v. National Hockey League Players' Assn. (1995) 39 Cal.App.4th 1347, 1354.) Throckmorton has made no attempt to demonstrate this.
In light of our ruling that the trial court properly enforced the Mexican forum selection clause, it is unnecessary for us to consider Throckmorton's argument that the dismissal is not justified on forum non conveniens grounds.
II.
We Lack Jurisdiction to Review the Attorney Fees Award.
Finally, we come to the last ten pages of Throckmorton's opening brief, which consists of three arguments challenging the trial court's award of attorney fees. She argues there is no prevailing party under Civil Code section 1717 because there is not yet a final determination of the action; the amount of requested fees was unreasonable; and there was insufficient evidence of the reasonableness of counsel's hourly rates.
We lack jurisdiction to consider these issues. "An order awarding attorney fees is separately appealable as an order after judgment." (Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 706.) However, Throckmorton has filed no notice of appeal from the attorney fees award. Her notice of appeal states that it is from the judgment or order entered on February 10, 2015, which is the trial court's dismissal order. The clerk's transcript contains no notice of appeal specifying the later attorney fees award. A timely notice of appeal from an appealable order or judgment is essential to vest this court with jurisdiction to review the order or judgment. (See Adoption of Alexander S. (1988) 44 Cal.3d 857, 864; Cal. Rules of Court, rule 8.100(a).) Because Throckmorton never filed a notice of appeal from the fee award, we never gained jurisdiction to review it.
We reach this issue sua sponte, after having solicited supplemental briefing from the parties.
In supplemental briefing, Throckmorton acknowledges she did not file a notice of appeal from the later fee award but asks us to liberally construe her March 30, 2015 notice of appeal from the judgment to encompass it. But, as we have previously explained, "[t]he policy of liberally construing a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2)) does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all." (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) This was not the case in the two authorities Throckmorton cites. (See In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017 [applying principle of liberal construction where timely notice of appeal erroneously specified non-appealable findings rendered simultaneously on same date as appealable order, in same written order]; D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361-363 [timely notice of appeal specified correct order but listed incorrect case number].) Here, though, there is simply no way to construe Throckmorton's March 30, 2015 notice of appeal from a judgment or order "entered on [date] 2/10/2015" as an appeal from a later order awarding attorney fees. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47; Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1224-1225 (Bosetti).) On the contrary, the fee motion had only just been filed (some five days earlier) and had not yet even been opposed, much less fully briefed, heard and decided.
Throckmorton also cites authority authorizing an appellate court to construe a notice designating the record as a notice of appeal if the record designation notice manifests a party's intent to appeal from a specific judgment, but that authority is of no help either. (See Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1024 [construing as a timely notice of appeal from the judgment plaintiff's notice requesting superior court to prepare transcripts on appeal, where request was filed within deadline to appeal the judgment, referenced the judgment being appealed, and also referenced a "notice of appeal" previously served on defendants but mistakenly not filed].) Throckmorton's notice designating a clerk's transcript no more manifests her intent to appeal the fee award than does her notice of appeal: it does not mention any order awarding attorney fees (nor even any of the briefing on the motion) and, once again, it was filed before the fee motion had even been fully briefed. (See Bosetti, supra, 175 Cal.App.4th at pp. 1223-1226 [distinguishing Nielson Construction Co.].)
If we had jurisdiction, moreover, Throckmorton's arguments self-evidently would fail for the further reason that, as the defendants note, the record before us is utterly deficient. All we have is a copy of the minute order from the May 7, 2015 hearing setting forth the trial court's tentative ruling granting the motion and taking the matter under submission, and a notation in the register of actions the following day indicating the court adopted its tentative ruling. None of the motion papers are in the record, and there is no transcript of the May 7, 2015 hearing. The order awarding fees was not even designated for inclusion in the record. "It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Thus, when a party challenging an attorney fees award fails to provide an adequate record, the award must be affirmed because we cannot presume the trial court erred but, on the contrary, must presume the award is correct. (Vo v. Las Virgenes Municipal Water District (2000) 79 Cal.App.4th 440, 447.) "The absence of a record concerning what actually occurred . . . precludes a determination that the trial court abused its discretion" in awarding fees. (Id. at p. 448.)
In connection with supplemental briefing on the jurisdictional question, the defendants tell us that the trial court entered an order on the attorney fees motion on July 1, 2015, which was nearly two months after the May 7 hearing. They have informally attached a copy of the three-page order (entitled, Order after Hearing on Motion by Defendants Juan Antonio Soria and Marth Gurrola-Soria for Attorney's Fees), along with a copy of the register of actions that is more current than the one contained in the clerk's transcript and reflects the entry of this order. On our own motion, we order the record augmented to include the July 1, 2015 order. (See Cal. Rules of Court, rule 8.155(a)(1)(A); Estate of Joslyn (1995) 38 Cal.App.4th 1428, 1431 fn. 3.)
III.
Defendants' Motion for Appellate Sanctions
Finally, the defendants have filed a motion asking us to deem this appeal frivolous and impose sanctions against Throckmorton and her counsel in the amounts documented in the supporting declaration of their counsel, which total $83,958.50 in attorney fees and $3,240.94 in costs. In connection with that motion, the defendants also have filed a separate motion asking us to take judicial notice of various records of this court from the prior writ proceeding, and records of the California Supreme Court relating to that same proceeding (see footnote 13, ante); their unopposed motion for judicial notice is granted. While this is a close call, "we are unable to conclude that the appeal as a whole is so utterly devoid of potential merit as to justify sanctions." (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1112.)
These expenses represent the fees and costs the defendants incurred in this appeal (including for preparation of their sanctions motion), as well as in connection with an earlier petition for review Throckmorton filed relating to the prior writ proceeding that the Supreme Court ordered stricken for lack of jurisdiction.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.