Filed 2/22/18 Lee v. Professional Recovery Systems, Inc. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

FREIDA LEE,
Plaintiff and Appellant,
v.
PROFESSIONAL RECOVERY
SYSTEMS, INC., et al.,

Defendants and Respondents.
A142730

(Alameda County
Super. Ct. No. RG12612810)


Plaintiff Freida Lee brought this action alleging defendants engaged in unfair debt collection practices by twice reporting the same debt, monies owed to the East Bay Municipal Utilities District (EBMUD), on her credit report and failing to note on the report that she disputed the debt. Shortly before trial, she moved to amend her complaint to add class action allegations and additional causes of action, and the trial court denied the motion. The court then granted summary adjudication to defendants as to one of plaintiff’s causes of action, and subsequently dismissed the action. On appeal, plaintiff contends the trial court abused its discretion in denying her motion to amend the complaint and erred in granting summary adjudication. We shall affirm the judgment.
I. BACKGROUND
Plaintiff filed her complaint in this action in January 2012 against Professional Recovery Systems, Inc. (PRS), Rash Curtis, and Doe defendants. She later inserted the name K.B.R., Inc. for one of the Doe defendants.
Plaintiff alleged defendants were debt collectors as defined by the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788.1 et seq., Debt Collection Practices Act), that they negatively reported the same debt twice on her credit report in violation of section 1785.25, subdivision (a) (1785.25(a)), a part of the California Consumer Credit Reporting Agencies Act (§ 1785.1 et seq., Credit Reporting Agencies Act), and that she notified them that she was disputing the debt but they failed to note the dispute on her credit report. The first cause of action alleged defendants’ actions violated the Debt Collection Practices Act, specifically section 1788.17, and the second alleged the actions violated section 1785.25 subdivision (a) of the Credit Reporting Agencies Act.
Trial was set for July 1, 2014. In or about March 2014, defendants filed a motion for summary judgment. In support of the motion, they submitted the declaration of Chris Paff, the Executive Vice President of Collections and Operations for K.B.R., Inc. dba Rash Curtis and Associates and Professional Recovery Systems (KBR). The declaration stated that KBR purchased the assets of PRS in 2010, along with the right to use the name Professional Recovery Systems, and that Professional Recovery Systems and PRS were registered fictitious business names of KBR. KBR had used the name Rash Curtis & Associates to conduct business since 1977, and Rash Curtis & Associates was also a registered fictitious business name of KBR. After KBR bought PRS in 2010, it worked with an independent contractor to have the “subscriber codes” for the former PRS accounts—which reflected that PRS was the furnisher of the information—changed to a new KBR subscriber code. However, some of the accounts were instead accidentally changed to a subscriber code indicating the information was provided by Rash Curtis & Associates. KBR reported the matter to the credit agencies to correct the mistake. However, at least with respect to the reporting of plaintiff’s account, the account was accidentally reported under both subscriber codes; as a result, plaintiff’s debt to EBMUD was reported twice. When it learned of the mistake, KBR contacted Equifax and instructed it to remove the duplicate reporting.
In March 2014, plaintiff moved to amend her complaint to include class action allegations, alleging that defendants’ failure to comply with the Debt Collection Practices Act and Credit Reporting Agencies Act was systematic and routine. The proposed first amended complaint contained four causes of action for violation of the Debt Collection Practices Act (§§ 1788.13, subd. (a), 1788.17) and three for violations of the Credit Reporting Agencies Act (§ 1785.25(a)). The supporting papers averred that, in its motion for summary judgment, KBR had recently indicated for the first time that non-Rash Curtis accounts might have been routinely and falsely reported in its name and double-reported in the names of both Rash Curtis and PRS. Plaintiff also wished to amend the complaint to clarify her position that a debt collector cannot sue under a name other than its own under California law.
Defendants opposed the motion to amend the complaint on the grounds that it was unnecessary for plaintiff to amend her complaint to divide her two causes of action into seven and that the delay caused by the amendment would be prejudicial because defendant would have to respond to the amended complaint, begin discovery anew, and move again for summary judgment, and the trial date would need to be moved. The declaration of defendants’ counsel recited that the original complaint was filed in January 2012; that trial was originally set for April 2, 2013; that in an effort to find a date for plaintiff’s deposition that did not conflict with her schedule, defendants agreed to depose plaintiff in January 2013, and trial was continued to October 21, 2013; that plaintiff’s deposition took place on May 30, 2013; that, due to the scheduling of defendants’ motion for summary judgment, trial was rescheduled for July 1, 2014; that the hearing on the motion for summary judgment was scheduled for May 13, 2014; that extensive discovery had taken place; and that discovery was now closed.
The trial court denied the motion for leave to amend the complaint, noting that the case had been pending for more than two years; trial had already been continued twice; discovery was closed and defendants’ summary judgment motion had been scheduled; the amendment would “change the entire complexion of this case” by adding new causes of action and converting the matter to a class action; and the amendment would cause further delay, reopening of discovery, class certification proceedings, and a new round of challenges to the pleadings and dispositive motions. The court also found unconvincing plaintiff’s explanation for the delay in seeking leave to amend.
The court granted summary adjudication as to plaintiff’s first cause of action for violation of the Debt Collection Practices Act on the ground it was preempted by federal law (15 U.S.C. § 1681t(b)(1)(F)) and ordered that cause of action dismissed. The court denied summary adjudication as to the second cause of action for violation of the Credit Reporting Agencies Act. At plaintiff’s request, the complaint was then dismissed without prejudice.
II. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Leave to
Amend the Complaint

Plaintiff contends the trial court abused its discretion in denying her leave to amend the complaint to add class action allegations and new causes of action.
“ ‘ “[T]he trial court has wide discretion in allowing amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]” ’ [Citation.] Nevertheless, it is also true that courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial. [Citations.] But this policy applies ‘ “only ‘[w]here no prejudice is shown to the adverse party.’ ” ’ [Citation.] Moreover, ‘ “ ‘even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” ’ [Citations.] Thus, appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is ‘ “offered after long unexplained delay . . . or where there is a lack of diligence . . . .” ’ [Citation.]” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175 (Melican).) The plaintiff bears the burden to show the trial court abused its discretion. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
The court in Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 (Magpali), rejected a contention that a trial court had abused its discretion in denying leave to amend a complaint to bring a claim under the Unruh Civil Rights Act. (§ 51 et seq.) The court noted that the amendment was proposed on the eve of trial, nearly two years after the complaint was originally filed, and that the plaintiff had no explanation for bringing the request to amend so late. (Magpali, 48 Cal.App.4th at p. 486.) The court went on: “In addition, prejudice to [defendants] was clearly shown because in preparing for trial on claims of breach of contract, misrepresentation, and intentional infliction of emotional distress, it had not discovered or deposed many of the witnesses who would support the new allegations, and had not marshaled evidence to oppose the contention that a systemwide discriminatory policy existed. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown.” (Id. at pp. 486-487.) The court noted that adding the new cause of action “would have changed the tenor and complexity of the complaint from its original focus on misrepresentations and demands made to [plaintiff] by his superiors to an exploration of [defendants’] activities and practices in the entire Southern California area,” and would have required “a continuance to allow [the defendant] to depose new witnesses.” (Id. at pp. 487-488.)
Similarly, the court in P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 (P&D), concluded a trial court did not abuse its discretion in denying leave to amend a complaint to add new causes of action. The appellate court explained: “The court’s ruling was based on unreasonable delay. [Plaintiff] did not seek leave to amend until after the trial readiness conference, an amendment would require additional discovery and perhaps result in a demurrer or other pretrial motion, and P&D offered no explanation for the delay.” (Ibid.)
Although trial here was not as imminent as in Magpali or P&D, many of the same considerations apply. Plaintiff filed her complaint more than two years before she sought to amend it to add class allegations. The parties had engaged in extensive discovery during that time. Discovery was closed, a summary judgment motion had been made, and the trial—already continued twice—was scheduled to take place shortly. Moreover, the new allegations would necessitate class certification proceedings, as well as, very likely, additional discovery and a new summary judgment motion.
Plaintiff contends she only learned of the basis for the class allegations when defendants brought their motion for summary judgment, supported by the evidence that there were errors in the transfer of information when PRS’s system was converted to KBR’s system. The trial court could reasonably conclude plaintiff did not adequately explain why she was unable to learn the bases for her new allegations during the more than two years the action was pending. On this record, plaintiff has not shown a “manifest or gross abuse of discretion” (Melican, supra, 151 Cal.App.4th at p. 175) in denying leave to amend her complaint.
B. Section 1788.17 Is Preempted and Does Not Apply
The trial court granted summary adjudication of the first cause of action, for violation of the Debt Collection Practices Act, on the ground it was preempted by federal law, specifically, the Fair Credit Reporting Act (federal Credit Reporting Act) (15 U.S.C. § 1681 et seq.). Plaintiff contends this was error.
The first cause of action alleged a violation of section 1788.17, which provides in pertinent part: “Notwithstanding any other provision of this title [the Debt Collection Practices Act], every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code.” Sections 1692b to 1692j of Title 15, part of the federal Debt Collection Act, impose a series of requirements and prohibitions on debt collectors regarding, for example, the acquisition of location information about the consumer (15 U.S.C. § 1692b); unauthorized communications with consumers or third parties (id., § 1692c); harassment or abuse in connection with collection of a debt (id., § 1692d); validation of debts (id., § 1692g); and applying payments for multiple debts (id., § 1692h).
Plaintiff claims, more specifically, that defendants violated section 1692e of Title 15. It provides, in pertinent part, that a debt collector may not use “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” The statute then provides examples of conduct that would violate this proscription, including: “(2) The false representation of [] the character, amount, or legal status or any debt….[;] (8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed[;] (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer[; and] (14) The use of any business, company, or organization name other than the true name of the debt collector’s business.” Plaintiff also claims defendants violated 15 U.S.C. section 1692f, which provides that debt collector “may not use unfair or unconscionable means to collect or attempt to collect any debt.”
Defendants contend this claim is preempted by title 15 of the United States Code, section 1681t (governing credit reporting). This statute provides that, with specified exceptions, “this title [15 U.S.C. § 1681 et seq.] does not annul, alter, affect, or exempt any person subject to the provisions of this title [ibid.] from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, or for the prevention or mitigation of identity theft, except to the extent that those laws are inconsistent with any provision of this title [ibid.], and then only to the extent of the inconsistency.” (15 U.S.C. § 1681t(a).) The statute, however, specifically preempts any “requirement or prohibition . . . under the laws of any State—[¶] (1) with respect to any subject matter regulated under . . . [¶] (F) section 623 [15 U.S.C. § 1681s-2], relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply—[¶] . . . [¶] (ii) with respect to section 1785.25(a) of the California Civil Code . . .” (15 U.S.C. § 1681t(b).) Thus, as relevant here, the federal statutory scheme does not preempt state law, except with respect to “any subject matter” regulated under section 1681s-2 of Title 15, except that this rule of preemption does not apply to the requirements of Civil Code section 1785.25, subdivision (a).
The violations plaintiff alleges here—that defendants wrongly reported the same debt twice and continued to do so after being informed that plaintiff disputed the debt; failed to include notice of the dispute; and failed to conduct a proper investigation—fall comfortably within the preempted “subject matter” regulated by 15 United States Code section 1681s-2. Indeed, plaintiff does not argue otherwise. Instead, she contends her claim under section 1788.17 is not preempted because the wrongs she alleges also fall within the scope of section 1785.25(a)—the exception to the exception of the general rule of non-preemption. (15 U.S.C. § 1681t(b)(F)(ii).) Section 1785.25(a) provides that “[a] person shall not furnish information on a specific transaction or experience to any consumer credit reporting agency if the person knows or should know the information is incomplete or inaccurate.” The crux of plaintiff’s argument is that the claims made pursuant to section 1788.17 are all “subject to the 1785.25(a) saving, since all go [to] the accuracy or completeness of information furnished to a credit reporting agency.” We disagree.
Plaintiff’s argument is undercut by the fact that subdivisions (c) and (f) of section 1785.25—which are not saved from preemption—more specifically govern the conduct alleged here. Section 1785.25 (c) provides that so long as the accuracy of the information is in dispute, the person providing the information “may not furnish the information to any consumer credit reporting agency without also including a notice that the information is disputed by the consumer.” (Compare, 15 U.S.C. section 1681s-2 subdivision (a)(3).) And section 1785.25 subdivision (f) provides that once a notice of dispute is received, the person who provided the information “shall [] complete an investigation with respect to the disputed information and report to the consumer credit reporting agency the results of that investigation….” (Compare, 15 U.S.C. section 1681s-2 subdivision (b).) Thus, if the saving of section 1785.25(a) from preemption had been intended to include all matters pertaining to the accuracy or completeness of information reported to credit agencies, the statute would not have restricted the savings to subdivision (a).
Plaintiff relies on two federal cases to support her argument that the claim under section 1788.17 is not preempted. Those cases hold that an unfair competition action (under Bus. & Prof. Code § 17200) alleging damage for wrongful credit reporting, is preempted by the federal Credit Reporting Act “insofar as it is predicated on violations of the [federal Credit Reporting Act] or other statutory claims that are also preempted. [Citations.]” (El-Aheidab v. Citibank (S.D.), N.A. (N.D.Cal. Feb. 15, 2012) 2012 U.S. Dist. LEXIS 19038, *17 (El-Aheidab).) Such claims, however, are not preempted “to the extent that Plaintiff attempts to raise a § 17200 claim based on violations of § 1785.25(a).” (Id. at *18.) This comports with the general rule that “[s]tatutes which impose legal duties are preempted; statutes which merely provide procedural remedies are not. In Gorman [v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1171 (9th Cir. 2009)], the Ninth Circuit found that a plaintiff could raise a claim under Cal. Civ. Code § 1785.25(a) because the [federal Credit Reporting Act] expressly exempted that section from preemption, even though [that Act] did not also expressly exempt the subsection
[§ 1785.31] granting litigants a private right of action to enforce § 1785.25(a). The
court found that ‘these sections [providing a private right of action] merely provide a vehicle for private parties to enforce other sections, which do impose requirements
and prohibitions.’ [Citation.]” (Ibid; see also, Bottoni v. Sallie Mae, Inc.
(N.D.Cal. Feb. 11, 2011) 2011 U.S. Dist. LEXIS 18874, *42-43.) Neither El-Aheidab nor Gorman control here because section 1788.17 does not merely “provide a vehicle
for private parties to enforce [§ 1785.25]” but instead imposes “requirements and prohibitions” in addition to those set forth in the federal Credit Reporting Act, namely, the requirements and prohibitions found in sections 1692b to 1692j of the federal Debt Collection Practices Act.
Plaintiff alternatively argues that section 1788.17 is not preempted by
15 United States Code section 1681t because section 1788.17 does not impose
“state law” requirements or prohibitions but merely incorporates federal requirements and prohibitions. The analysis is not so straightforward. Section 1788.17 grafts the federal debt collection regulations onto the state debt collection regulations. The preempting statute—15 U.S.C. section 1681t—and section 1785.25, subdivision (a) do not govern debt collection practices. They govern credit reporting. A claim that a debt collection agency is furnishing inaccurate information does not implicate either section 1788.17 or 15 US.C. § § 1692b to 1692j unless the furnisher is also “collecting or attempting to collect a consumer debt.” (§ 1788.17.) As plaintiff herself argues, the statutory schemes bespeak an intent to regulate furnishers of information and debt collectors separately “even if they are doing both at the same time.” (Italics added.) The converse, therefore must also be true: If they are not doing both at the same time, then the regulations apply separately to each activity—e.g., if a furnisher of information is not also attempting to collect a debt, then the debt collection proscriptions and requirements would not apply. Plaintiff’s position appears to be that those who are improperly furnishing credit information can also be subject to debt collection regulations by way of state law so long as those regulations emanate from federal law. But where Congress has expressly preempted specific subject matters of credit reporting (15 U.S.C. § 1681s-2) we think it
is for Congress and not the states to decide whether an additional layer of regulation imported from federal debt collection law should be applied to those who are furnishing information to credit agencies.
For the same reasons, it appears plaintiff has not proven a claim under section 1788.17. Defendants presented evidence that they worked on collecting plaintiff’s debt for a period of about six weeks beginning in July 2008, when the debt was referred to PRS; that they did not take any further steps to collect on the account after August 28, 2008; and that the debt was first reported to the credit agencies in October 2008. Plaintiff neither disputed nor objected to that evidence. Plaintiff neither alleges nor argues that defendants were engaged in debt collection activities or efforts at any time during the period in question (from January 2011 going forward). In opposition to defendants’ motion plaintiff herself contended, “[t]he only pertinent facts of this case is [sic] that KBR obtained a bill assigned by EBMUD for collection, but so completely bungled its merger with the collector that originally held the debt that it managed to be credit reported by two entity names it uses to collect debts—simultaneously. [Citation.] It also failed to note plaintiff’s dispute of the entry on her credit, as is its obligation. . . .” (Italics added.) Plaintiff did not and does not contend the erroneous credit reporting was “in connection with the collection of any debt” (15 U.S.C. § 1692e), and there is no evidence that defendants were “collecting or attempting to collect a consumer debt” (§ 1788.17) when furnishing the reports to the credit agencies.
Plaintiff did argue below that because defendants continued to “credit report the account” that this constituted “ ‘tak[ing] any steps to collect the debt.’ ” Similarly, on appeal plaintiff argues, in a somewhat different context, that plaintiff was the subject of “debt collection and credit reporting acts” because each credit report “indicate[s] [defendants’] attempt to collect the account.” (Italics added.) Plaintiff thus appears to argue that credit reporting is ipso facto an act of debt collecting, but cites no authority for this proposition. As we have previously noted, plaintiff has argued that the intent of both state and federal laws is “to separately regulate both furnishers of information and debt collectors, even if they are doing both at the same time.” The record here, however, shows unequivocally that defendants were not “doing both at the same time” but were acting only as furnishers of information from and after October 2008. We see no reason to apply debt collection proscriptions to credit reporting merely because the reporting is being done by a debt collection agency, where Congress has determined that the proscriptions of the FCRA and of section 1785.25, subdivision (a) suffice to protect the consumer’s rights with respect to credit reporting activities.
Plaintiff is not without a remedy for any improper credit reporting activity. The court denied defendants’ motion for summary adjudication as to plaintiff’s second cause of action, which alleged a violation of the Credit Reporting Agencies Act, specifically section 1785.25, subdivision (a).
III. DISPOSITION
The judgment is affirmed.




_________________________
Rivera, J.*


I concur:


_________________________
Ruvolo, P.J.



Streeter, J., concurring.
I have a slightly different take than the majority does on the federal preemption issue in this case but ultimately reach the same result.
“When analyzing an express preemption clause, our task is to ‘ “identify the domain expressly pre-empted” ’ by its language.” (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1062 (Brown).) The federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA) “contains two preemption sections affecting state law claims that apply to persons who furnish information” to credit reporting agencies. (Sanai v. Saltz (2009) 170 Cal.App.4th 746, 773 (Sanai).) The first and more general of the two, 15 U.S.C. § 1681t(a), provides that nothing in the FCRA exempts any person “from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, . . . except to the extent that those laws are inconsistent with any provision of this [subchapter], and then only to the extent of the inconsistency.” The second and more specific of the two, 15 U.S.C. § 1681t(b)(1), provides that “(b) . . . No requirement or prohibition may be imposed under the laws of any State—[¶] (1) with respect to any subject matter regulated under—[¶] . . . [¶] (F) section [1681s–2 of this title], relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply—[¶] . . . [¶] (ii) with respect to section 1785.25(a) of the California Civil Code . . . .” (Italics added.)
In framing the preemption issue for us on appeal, the parties have focused exclusively on 15 U.S.C. § 1681t(b)(1). I see that analysis as incomplete. Because section 1788.17 does nothing more than require compliance with federal law as set forth in 15 U.S.C. sections 1692b to 1692j, I fail to see how appellant seeks to enforce any “requirement or prohibition . . . imposed under” California law (15 U.S.C. § 1681t(b)). By the plain terms of the statute we are applying, there appears to be nothing to preempt. No case, published or unpublished, directly addresses this question. Without delving into the details, suffice it to say that the answer appears to turn on the further question whether it would be “inconsistent with” federal law (15 U.S.C. § 1681t(a)) to recognize a state-created private cause of action under section 1788.17 for enforcement of 15 U.S.C. sections 1692b to 1692j. It might be. It might not be. On this record, I think it is impossible to say.
The availability of a private cause of action by a consumer against a furnisher of information to a credit reporting agency for reporting inaccurate information is limited. (Sanai, supra, 170 Cal.App.4th at p. 773; see Nelson v. Chase Manhattan Mortgage Corp. (9th Cir. 2002) 282 F.3d 1057, 1060.) The consumer may not simply complain directly to the furnisher and if it fails to respond to the consumer’s satisfaction, then sue directly for a violation of the FCRA. There is the equivalent of an exhaustion requirement obligating the consumer to report any inaccuracy first to the credit reporting agency, which must investigate and, if warranted, notify the furnisher of the results of the investigation; and only then—after the furnisher has heard from the credit reporting agency—may the consumer sue the furnisher under 15 U.S.C. section 1681s-2(b). (Sanai, at p. 764; Nelson, at p. 1060.) In her opening brief on appeal, appellant cites 15 U.S.C. section 1681s-2—as the basis for her first cause of action, without specifying a subsection. A private cause of action under section 1788.17 for violation of 15 U.S.C. section 1681s-2(a) would almost certainly be preempted by 15 U.S.C. section 1681t(a), because it would be “inconsistent with” 15 U.S.C. sections 1681s and 1681s-2 (c) and (d), which allow only governmental enforcement of duties imposed under section 1681s-2(a). That would not necessarily be the case for a claim based on 15 U.S.C. section 1681s-2(b), which does give rise to a private right of action under 15 U.S.C. sections 1681n and 1681o. But neither the allegations in the complaint nor the evidence appellant offered in opposition to summary adjudication reveals whether she is pursuing a 15 U.S.C. section 1681s-2(b) claim.
Because we undertake any analysis of express federal preemption mindful that there is a presumption against it (Brown, supra, 51 Cal.4th at p. 1060), I start with that presumption. Given the state of the record, however, I see no choice but to resolve the preemption issue here by applying a different presumption—the presumption of correctness accorded all trial court decisions, absent a showing of error by the appellant on the record presented. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, while I join in Part II.A of the majority’s opinion, with respect to Part II.B, I concur in the result.




_________________________
Streeter, J.

















Freida Lee v. Professional Recovery Systems, Inc., et al. (A142730)