Filed 6/20/12 Windsor v. Tamraz CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DIVISION FOUR
SHIRLEY A. WINDSOR,
Plaintiff and Appellant,
v.
JOEL F. TAMRAZ et al.,
Defendants and Respondents.
B229484
(Los Angeles
County
Super. Ct.
No. NC054493)
APPEAL from
an order of the Superior Court
of
County, Joseph E. DiLoreto, Judge. Affirmed
Shirley A.
Windsor, in pro. per., for Plaintiff and Appellant.
Law Offices
of Joel F. Tamraz and Joel F. Tamraz for Defendants and Respondents.
>
This is
another chapter in prolonged litigation between Shirley A. Windsor, Frank
Prior, and Prior’s attorney, Joel Tamraz (we refer to Prior and Tamraz
collectively as “respondentsâ€). In this
action, Windsor alleges contract
and tort causes of action arising from a settlement in an underlying action
which was not finalized at the time this action was filed. The trial court sustained a demurrer by
respondents on statute of limitations grounds and dismissed this action. During the pendency of this appeal, the
underlying judgment was finalized and satisfied as part of a global
settlement.
Windsor
argues the trial court erred in sustaining the demurrer without leave to
amend. Respondents contend that this
appeal is moot and that no issues remain to be decided in light of the
resolution of the underlying case. We
affirm dismissal of the contract and covenant of good faith causes of action on
the grounds that they are barred by the resolution of the underlying action and
are moot because there is no effective relief which may be provided through
this appeal. We also conclude that the
trial court did not err in sustaining the demurrer to the first amended
complaint as to the remaining causes of action.
We deny respondents’ request for sanctions on appeal.
FACTUAL AND PROCEDURAL SUMMARY
An
understanding of the history of litigation between Windsor and Prior is
necessary to provide a context for the present appeal.
A. Underlying Actions
This
unlawful detainer action was filed by Prior against Windsor
on July 8, 2003 (the
unlawful detainer action). Default
judgment in favor of Prior was entered in July 2003 and a writ of possession
issued. Windsor’s
efforts to stay execution of the writ were unsuccessful, and the levying
officer was ordered to proceed with the lockout. On October
5, 2004, the court entered judgment for Prior against Windsor
in the principal amount of $11,000.00, costs of $298.30, and no fees or
interest, for a total award of $11,298.30 (unlawful detainer judgment).
Prior
The parties
tell us little about the gravamen of this action, although as we explain, it is
the catalyst for the present appeal.
Without citation to the record, Windsor
informs us that this action was filed by her in December 2003 for breach of
contract and fiduciary duty. In a
declaration filed in that case, Tamraz stated that the lawsuit “involved an
action by Windsor to attempt to set
aside a foreclosure sale of a residence that was previously owned by her, which
commenced on December 9, 2003.†He explained that he was associated as
counsel for Frank Prior in 2005. No copy
of the complaint in this action is included in the record on appeal.
On April 4, 2006, the parties entered
into a stipulated settlement before the court.
They signed a hand-written settlement agreement on a court form. It provided that Prior would pay Windsor $20,000
“within 15 days, or on or before April 20, 2006 in exchange for a dismissal
with prejudice, as well as a release of all claims with a CC [Civil Code] 1542
waiver as to all unknown claims as to all defendants, as well as defendants’
agents, witnesses, and attorneys.†The
parties agree that the agreement was confidential.
In
opposition to a demurrer filed in the present action, Windsor
discussed the settlement of case No. NC035087 and said: “The court confirmed that it was the intent
of the parties that the stipulation between them was to be the final settlement
that would end the situation between them for all purposes.†The reporter’s transcript of April 4, 2006
reflects that the court asked Windsor whether she understood that once the
court accepted the settlement, “it is a full and complete settlement as of
today’s date and you could not come back later and request any more monies
arising from this incident?†Windsor
replied, “Yes.†The court entered
judgment in conformity with the stipulation of the parties and case No.
NC035087 was dismissed. But the court
retained jurisdiction for purposes of enforcement.
On April
21, 2006, Tamraz wrote to Windsor, saying that he had left several messages for
her confirming that he had in his possession a cashier’s check for $20,000, “as
well as another confidential document for you to execute,†to implement the
settlement. He asked Windsor
to call to make arrangements to pick up the check and execute “the documents
involved.†This correspondence was
followed by similar correspondence in May 2006.
Two obstacles to final resolution of case No. NC035087 then
occurred. Windsor
took the position that she did not use elevators and could not come to Tamraz’s
high-rise office for that reason. She
also objected to the language of the proposed release of claims on the ground
that several additional terms were added beyond the scope of the stipulation
reached on April 4, 2006.
We discuss
the ensuing developments in case No. NC035087 which occurred simultaneously
with the litigation of the present case below.
3.
Prior, Tamraz, and Tyler Barnes (Limited Jurisdiction)
Windsor
filed this action on December 13,
2007 (the limited jurisdiction action). The operative pleading was the fourth amended
complaint, which alleged causes of action for breach of contract, intentional
interference with economic advantage; aiding and abetting the intentional
breach of a duty owed to another, interference with economic advantage,
defamation, and damages under Code of Civil Procedure section 1992. Apart from the defamation allegations, the
failure to complete the settlement in case No. NC035087 was the basis for
most of the complaint. Windsor
alleged that the defendants engaged in a scheme to thwart her receipt of the
$20,000 settlement in case No. NC035087 by entering into a sham assignment
of the unlawful detainer judgment (case No. 03U02263) and claiming that Barnes
had a judgment lien in the NC035087 action.
After the court sustained demurrers brought by Tamraz and Tyler Barnes,
judgment of dismissal was entered as to them.
Apparently
the matter went to trial as to defendant Prior, although the breach of contract
claim was dismissed on the eve of trial.
The court granted judgment for Windsor in the slander cause of action
and fixed damages “at the nominal sum of two hundred fifty dollars.â€
2010.
B. The Present Action (Los Angeles Superior
Court Case No. NC054493)
Windsor
filed the complaint against respondents on May 4, 2010. She alleged causes of action for breach of
contract, breach of the implied covenant of good faith and fair dealing, fraud
by deceit, intentional or negligent infliction of emotional distress, and
damages under Code of Civil Procedure section 1992 (failure to appear for
deposition under subpoena). The charging
pleading is the first amended complaint filed in August 2010. The gravamen of the action was respondents’
failure to perform their obligations, including payment of $20,000, under the
settlement agreement in case No. NC035087.
Windsor alleged that Tamraz refused to send her a cashier’s check for
$20,000 by mail, insisting instead that she appear at his office and sign a
release which contained terms not included in the original April 4, 2006
in-court settlement. She also alleged
that respondents had asserted that a judgment lien held by Tyler Barnes in case
No. NC035087 prevented tender of the $20,000 due to her.
The breach
of contract and breach of the covenant of good faith and fair dealing causes of
action were based on the alleged failure of Prior to tender $20,000 to Windsor
and insistence that Windsor owed Prior $11,298.30 on the unlawful detainer
judgment (case No. 03U002263). The third
cause of action for fraud by deceit alleged that respondents falsely
represented that the settlement in case No. NC035087 resolved all claims
between these parties in order to induce Windsor’s agreement, but later claimed
that the unlawful detainer judgment in favor of Prior was not included. It also was based on the allegation that
respondents claimed they could not tender performance of that settlement
because of a non-existent lien held by Tyler Barnes. The fourth cause of action for intentional
infliction of emotional distress was based on respondents’ conduct in deceiving
Windsor about the case No. NC035087 settlement and in preventing her from
receiving the settlement proceeds. The
fifth cause of action (against Tamraz only) was for statutory damages of $500,
under Code of Civil Procedure section 1992, for failure to appear at a
deposition pursuant to subpoena.
On
September 30, 2010, the trial court sustained respondents’ demurrer to the
first amended complaint on statute of limitations grounds as to the first four
causes of action. Because damages on the
fifth cause of action are limited to $500, the trial court reclassified the
action as a limited jurisdiction case, assigned a new case number, and
transferred it to a limited jurisdiction department. The appeal in this action was filed December
6, 2010. No judgment of dismissal was
entered according to the docket in the case.
record on appeal.
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C. Subsequent Developments in Case No. NC035087
On October
28, 2010, the trial court denied Windsor’s request for entry of judgment
pursuant to stipulation in case No. NC035087.
The court noted that the judge who oversaw the stipulated settlement had
denied three similar requests in 2008.
In the October 2010 order, the trial court noted that Windsor had still
not executed the required releases and denied her motion. In November 2010, Windsor filed a new motion
to enforce the settlement agreement, set for hearing on December 14, 2010.
On December
14, 2010, Windsor finally executed a “General Release of Existing Claims†which
contained a waiver of unknown claims pursuant to Civil Code section 1542.
by Tamraz in 2006. Windsor released all
claims she might have had against Prior “arising out of the subject matter of
this action for injuries, damages, or losses . . . .†The same day, Windsor’s motion was taken
under submission. The trial court ruled: “The motion is granted pursuant to 664.6,
Code of Civil Procedure. [¶] The case is
ordered dismissed with prejudice pursuant to 664.6, Code of Civil
Procedure.â€
A dispute
then arose over the wording of the judgment memorializing the December 14, 2010
order. The trial court rejected
Windsor’s proposed judgment. On January
18, 2011, the trial court signed an order dismissing case No. NC035087 with
prejudice, noting that Windsor had delivered to Prior a signed general release
approved by the court. Prior was ordered
to immediately tender settlement proceeds of $20,000 to Windsor.
In February
2011, Prior obtained a writ of execution against Windsor in the unlawful
detainer action for a total of $18,479.26, which included interest on the
original judgment. Windsor obtained a
writ of execution on Prior’s bank accounts, which was vacated by the trial
court. It held that Windsor “is not
entitled to interest from the date of the agreement as [she] failed to fully
perform the terms of the agreement by executing the required release until
December 14, 2010. [Windsor] is entitled
to post-judgment interest from the date of the order (January 18, 2011).â€
In June
2011, the trial court appointed Judge Patrick Madden evidentiary referee of a
judgment debtor examination of Prior in case No. NC035087. Windsor claimed a right to a judgment against
Prior in her limited jurisdiction case (case No. 07C4871) of $250 plus
sanctions of $250. Prior claimed a right
to setoff of the judgment against Windsor in the unlawful detainer case (case
No. 03U02263) for $11,298.30 plus interest of $7,155.06. Judge Madden calculated that Prior owed
Windsor $21,608.56 ($20,000 judgment in case No. NC035087 plus interest of
$1,073.97 and on the limited jurisdiction case, case No. 07C04871, a total of
$534.59 from a $250 judgment, $250 sanctions, and $34.59 interest); and that
Windsor owed Prior $18,915.71 on the unlawful detainer judgment in case No.
03U02263 (judgment of $11,298.30, plus interest of $7,592.41 plus $25 for a
filing fee). Judge Madden calculated the
difference between what Prior owed Windsor, and what Windsor owed him, as
$2,692.85. He also found that Prior was
prepared to pay $2,718.75 to Windsor forthwith, if there was a full
satisfaction of judgment (and sanction order) in case No. NC035087. But Windsor challenged Prior’s right to any
offset from the unlawful detainer judgment.
In light of the dispute, Judge Madden ordered the parties to appear
before the trial court (Judge Klein) to determine whether Prior was entitled to
the offset. The judgment debtor
examination was stayed until that determination was made.
On July 1,
2011, Prior submitted an ex parte
application to offset the judgment he obtained in the unlawful detainer case
($18,915.71) from the $20,000 judgment in case No. NC035087. Prior represented that he was prepared to pay
Windsor either cash or cashier’s check ($2,718.75), to bring an end to eight
years of litigation. On July 6, 2011,
Judge Judith A. Vander Lans signed an order granting Prior’s ex parte
application to offset the judgment in case No. NC035087 (in favor of Windsor
against Price for $21,608.56) by the judgment in case No. 03U02263 ($18,915.71
in favor of Prior against Windsor). This
left a total due to Windsor from Prior of $2,718.75. “IT IS FURTHER ORDERED that upon payment by
Frank Prior (to be on this date $2,718.75), Case Numbers NC035087 and 07C04871
and 03U02263 are dismissed and judgments in each case satisfied.â€
The
reporter’s transcript reflects that Tamraz said: “I’d like the record to reflect that I’m
handing Ms. Windsor a cashier’s check in the sum of $2,750, slightly more than
what the judgment would be, and it’s dated 6-30-11. It’s [a] cashier’s check number 311912915
drawn on Citibank. And it’s made payable
to Shirley Windsor. And it’s from Frank
Prior. [¶] And now she has that
check. So this case is totally settled
and resolved as of this moment, and there is no further outstanding judgment as
far as Mr. Prior is concerned.â€
Windsor’s
response was to request a statement of decision, but she did not dispute that
the judgments had been satisfied. The
court denied that request. As of July 6,
2011, all underlying actions between Prior and Windsor had been satisfied and
were dismissed with prejudice. Windsor
did not attempt to appeal from that action.
DISCUSSION
I
We begin with
respondents’ argument in their brief on appeal that the subsequent July 2011
global settlement and satisfaction of judgment in case No. NC035087 and the
other cases render the issues on this appeal moot and leave no issues
unresolved. Windsor responds that the
July 2011 order did not consider or make findings on the causes of action
raised in her first amended complaint in this action.
She also
raises arguments regarding Prior’s right to an offset. We decline to consider any argument as to the
merits of the July 2011 order allocating the rights of the parties (including
Prior’s right to offset) because the order resulted in a satisfaction of
judgment and dismissal with prejudice of the three underlying actions
specified. Since no appeal was taken (nor
could it have been) from that order, the terms of the order are final and not
subject to attack on appeal. (
50 Cal.App.4th 1233, 1237 [final judgment terminates the litigation
between the parties and leaves nothing in the nature of judicial action to be
done other than questions of enforcement or compliance].)
“‘A
question becomes moot when, pending an appeal from a judgment of a trial court,
events transpire that prevent the appellate court from granting any effectual relief.’†(Quantification
Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 824, quoting
413, 419.) In Bullis Charter School v. Los Altos School Dist. (2011) 200
Cal.App.4th 1022, the court examined cases in which subsequent events had
rendered a controversy moot. (
settled the disputes arising out of an underlying contract while the appeal was
pending (Cappellino v. Moore (1929)
207 Cal. 35, 38).†(Ibid.) “When the parties to
a case have settled their underlying dispute, dismissal of the appeal as moot
is appropriate because the settlement moots the issues on appeal. [Citation.]â€
(Watkins v. Wachovia Corp. (2009)
172 Cal.App.4th 1576, 1588; see also Larner
v. Los Angeles Doctors Hosp. Associates, LLP (2008) 168 Cal.App.4th 1291,
1299-1300.)
Windsor
does not invoke any recognized exception to the mootness doctrine, such as the
exception for a case that presents an issue of broad public interest likely to
recur, or where there is a distinct possibility that the controversy between
the parties may recur. (See
Dist., supra, 200 Cal.App.4th at
pp. 1033-1034.) Even if she had, this
case does not involve any issue of broad public interest. Nor is there a likelihood the controversy
between the parties may recur under the broad terms of the release and order
dismissing case No. NC035087 after the judgment was satisfied.
On her
cause of action for breach of contract (against Prior only) in this action,
Windsor seeks damages of $20,000 plus interest from April 20, 2006 (the case
No. NC035087 settlement amount); an order of satisfaction in the unlawful
detainer case, or damages of $11,298.30 plus interest (the amount of the
unlawful detainer judgment obtained by Prior); and prejudgment interest. All of these items were included and finally
resolved in the July 6, 2011 order in case No. NC035087 as we have explained. There remains no effectual relief we may
grant on this cause of action and we conclude that it is moot. (Quantification
Settlement Agreement Cases, supra,
201 Cal.App.4th at p. 824.)
The same
reasoning applies to Windsor’s second cause of action for breach of the
covenant of good faith and fair dealing, also only against Prior. It alleges that Prior failed to act in good
faith by “refusing to tender the proceeds from the settlement agreement,
demanding an additional agreement to be signed, stating that plaintiff must
perform acts that have previously been performed, falsely representing that a
lien has been filed against the proceeds which prevents defendant from
performing his obligation to plaintiff and using meritless roadblocks suggested
by attorney Tamraz.†As discussed, all
of these issues were finally resolved and disposed of in case No. NC035087,
leaving no issues for resolution by this court.
Alternatively,
Windsor’s execution of the release in case No. NC035087, after this action was
filed, precludes relief on these causes of action. When a party releases all existing causes of
action he or she has promised not to sue again for past harms. (Mundy v.
Lenc (2012) 203 Cal.App.4th 1401, 1411.)
In Salehi v. Surfside III
Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, the court considered
the impact of a release which included an express waiver of the protection of
Civil Code section 1542 similar to the language included in the release
executed here by Windsor in December 2010.
The court held that the terms of the release applied to unknown claims
against the Association that arose prior to the release. (Id.
at p. 1161.) “A compromise settlement is
‘“decisive of the rights of the parties thereto and operates as a bar to the
reopening of the original controversy.â€â€™
(Folsom v. Butte County Assn. of
Governments (1982) 32 Cal.3d 668, 677.)
Thus, compromise settlements ‘ordinarily conclude all matters put in
issue by the pleadings—that is, questions that otherwise would have been
resolved at trial.’ (
(Doran v. North State Grocery, Inc.
(2006) 137 Cal.App.4th 484, 492.)
We conclude
that the third cause of action for fraud by deceit and the fourth cause of
action for emotional distress are not moot, but that the trial court properly
sustained the demurrer to these causes of action, as we next discuss.
II
“‘On
review of an order sustaining a demurrer without leave to amend, our standard
of review is de novo, “i.e., we exercise our independent judgment about whether
the complaint states a cause of action as a matter of law.†[Citation.]’
[Citation.] ‘“‘We treat the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law.
[Citation.] We also consider
matters which may be judicially noticed.’
[Citation.]â€â€™ [Citation.] ‘We affirm if any ground offered in support
of the demurrer was well taken but find error if the plaintiff has stated a
cause of action under any possible legal theory. [Citations.]
We are not bound by the trial court’s stated reasons, if any, supporting
its ruling; we review the ruling, not its rationale. [Citation.]’
[Citation.]†(
Francisco (2010) 185 Cal.App.4th 424, 433.)
Windsor’s third cause of action
for fraud by deceit is brought against both Prior and Tamraz. She alleges that respondents misled her into
believing that the original settlement of case No. NC035087 encompassed all
disputes between them, including her obligation to pay the
setoff of the amount of the unlawful detainer judgment from the $20,000 he owed
Windsor on the NC035087 settlement.
Windsor also alleges the insistence of respondents that she sign a
release with additional terms not included in the April 4, 2006 settlement of
case No. NC035087 as a ground for her fraud claim. Finally, Windsor’s fraud claim is based on
respondents’ alleged representation that tender of the $20,000 settlement
amount was barred by a lien held by Tyler Barnes.
Respondents
demurred to this cause of action on the ground that it is barred by the
litigation privilege codified in Civil Code section 47, subdivision (b). We find merit in the argument. The litigation privilege immunizes defendants
from virtually any tort liability, including claims for fraud, except a cause
of action for malicious prosecution. (
325, 333; Silberg v. Anderson (1990)
50 Cal.3d 205, 215-216.) “The
litigation privilege applies to statements made ‘by litigants or other
participants authorized by law’ (Action
Apartment Assn., Inc. v. City of Santa Monica [(2007)] 41 Cal.4th [1232,]
1241), and it attaches to communications ‘made in, or in anticipation of,
litigation.’ [Citation.]†(Olsen
v. Harbison, supra,
191 Cal.App.4th 325, 334.)
In
953 (Seltzer), in the context of a
special motion to strike under Code of Civil Procedure section 425.16, the
court applied the litigation privilege
under Civil Code section 47, subdivision (b) to statements made in the
negotiation of a partial settlement agreement.
(Seltzer v. Barnes,
970-972.) “‘[T]he litigation “privilege
applies to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some connection or
logical relation to the action.
[Citations.]†[Citation.]’ (Sylmar
Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122
Cal.App.4th 1049, 1058.)†(
Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17 (Home Insurance), which held that the litigation privilege extended
to an allegedly fraudulent statement concerning insurance policy statements
made during the litigation which impacted a subsequent settlement. (Seltzer,
supra, 182 Cal.App.4th at pp.
971-972, citing Home Insurance,
Insurance court held that the privilege applied even though the statement
was made outside a courtroom, and applied to statements made by counsel during
settlement negotiations. (96 Cal.App.4th
at p. 24.)
Here, the
fraud cause of action alleges that Prior and Tamraz led Windsor to believe that
the settlement of case No. NC035087 settled all claims between Prior and
Windsor, including Prior’s claims against Windsor, but then changed their
position and obtained a setoff of the judgment Prior had obtained in the
unlawful detainer case (case No. 03U02263) against Windsor. Statements by Prior and Tamraz to this effect
were made in the course of negotiating the enforcement of the settlement and
obtaining a release from Windsor and were privileged under Civil Code section
47, subdivision (b). Similarly,
respondents’ alleged insistence that Windsor sign the proposed release occurred
as part of the settlement and enforcement negotiations. The same rationale applies to Windsor’s
allegation that Prior and Tamraz committed fraud by continuing to represent
that a lien held by Tyler Barnes exists against settlement proceeds which
prohibited them from tendering the proceeds to Windsor. (Olszewski
v. Scripps Health (2003) 30 Cal.4th 798, 830-831 [litigation privilege
bars claims based on filing of statutory liens to achieve object of
litigation].)
We conclude
that the third cause of action for fraud and deceit was barred by the
litigation privilege under Civil Code section 47, subdivision (b).
III
Windsor’s
fourth cause of action, against both respondents, is for intentional or
negligent infliction of emotional distress.
She alleges that defendants “intentionally acted to deceive plaintiff
and prevent, delay or diminish plaintiff’s benefit of the settlement proceeds
from NC035087.†She also alleges that
defendants intended to cause her financial and emotional harm. The cause of action incorporates the previous
allegations.
Although
vaguely pleaded, it is apparent that this cause of action is based on the same
conduct alleged in the fraud and other causes of action, all related to the
negotiations leading to the satisfaction of the settlement in case No.
NC034087. The litigation privilege under
Civil Code section 47, subdivision (b) also applies to causes of action for
emotional distress. (
1012, 1018-1019 [causes of action for abuse of process and intentional or
negligent infliction of emotional distress barred by litigation privilege].) Windsor’s emotional distress claim is barred
and the order sustaining the demurrer was not in error.
We conclude
that the breach of contract and breach of covenant of good faith and fair
dealing causes of action are moot and barred by the global settlement reached
in July 2011 between Prior and Windsor.
Although we rely on the litigation privilege under Civil Code section 47
rather than the statute of limitations ground cited by the trial court, we
conclude the demurrer was properly sustained without leave to amend as to the
third and fourth causes of action because the complaint was not amenable to
amendment.
IV
With
respect to the cause of action for breach
of contract, Windsor also claims the trial court erred in stating: “You refused to complete the necessary
settlement process which is the signing of the releases. That’s tantamount to a settlement. That’s how you do it. They don’t just send you the money and say,
good, take another shot at me. All
right.†Windsor claims this was an
improper evidentiary finding related to the tender of the $20,000 and that it
is unsupported.
Windsor
fails to cite any authority to support this claim of error. However, the contention relates to the duties
of the parties in the settlement of case No. NC035087. As we have concluded, that matter was
resolved through a global settlement and any such issue is not the proper
subject for further appellate review.
V
Respondents
seek sanctions on appeal on the ground that Windsor’s appeal is frivolous. “[A]n appeal should be held to be frivolous
only when it is prosecuted for an improper motive—to harass the respondent or
delay the effect of an adverse judgment—or when it indisputably has no
merit—when any reasonable attorney would agree that the appeal is totally and
completely without merit.†(
31 Cal.3d 637, 650; see also In re
Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.) “The first standard is tested subjectively. The focus is on the good faith of appellant
. . . . The second is tested
objectively.†(In re Marriage of Gong & Kwong, supra, at p. 516.)
Given the
complexity of the issues presented, and the tortured procedural history, we
conclude that sanctions are not warranted.
DISPOSITION
The
order sustaining respondents’ demurrer to the first amended complaint is
affirmed. Respondents’ motion for
sanctions on appeal is denied.
Respondents are to have their costs on appeal.
EPSTEIN,
P. J.
We concur:
WILLHITE,
J.
SUZUKAWA,
J.
respondents’ motion to augment the clerk’s transcript, which we granted.
indicate the disposition of the other causes of action, except judgment for
defendant Prior was granted on a cause of action for failure to appear for
deposition.
