Authority
Filed 4/15/13 Washington v. Contra Costa County Housing Authority CA1/5
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opinion has not been certified for publication or ordered published for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
FIVE
and Appellant,
al.,
and Respondents.
A135797
(Contra Costa County
Super. Ct. No.
CIVMSC10-00034)
Plaintiff
Leo Washington, who has represented himself throughout this case, appeals from
a summary judgment entered in favor of
defendants Contra Costa County Housing Authority (Housing Authority) and Ingrid
S. Layne (collectively, “defendantsâ€).
(Code Civ. Proc., § 437c.)
reversed because defendants’ separate statement of undisputed material facts
was procedurally defective in several respects; the court considered evidence
that was not properly before it; the summary judgment motion was not served in
a timely fashion; and the summary judgment motion was based in part on
Washington’s testimony at his deposition, at which he claims he was under the influence
of psychiatric medication. Washington also argues that the court should
have allowed him to amend his complaint to include additional facts and causes
of action on behalf of his girlfriend, Sonja Colbert, and that the court should
not have unilaterally amended the judgment to include defendant Layne in the
award of costs. We reject these claims.
BACKGROUND
Washington
worked as a maintenance employee for the Housing Authority. Layne also worked for the Housing Authority
as a Section 8 Manager. Beginning in
2007, Layne hired Washington to renovate her home and paid him with cash and
personal checks. On September 29, 2009,
Layne gave birth to plaintiff’s son.
On
December 29, 2009, Washington visited the California Department of Fair
Employment and Housing (DFEH) and completed a pre-complaint questionnaire
alleging employment discrimination. He stated during his interview with DFEH that
he had consensual sex with Layne on two occasions and wanted a paternity test
to establish whether he was her baby’s father.
On January 7, 2010, DFEH sent Washington a letter stating that his
allegations were insufficient to support further action.
On
January 6, 2010, Washington filed a civil
complaint against the Housing Authority and Layne. On January 3, 2011, he brought a motion to
file a third amended complaint that would name his girlfriend Sonja Colbert as
a plaintiff and add claims that Colbert had against Layne and the Housing
Authority. These new claims were based
on allegations that Layne had used confidential financial information about
Colbert, a Section 8 landlord and vendor of the Housing Authority, for the
purpose of assessing Washington’s child support obligations. Colbert’s claims against the Housing
Authority were based on the theory that it had been negligent in its
supervision of Layne, and that Layne’s unauthorized use of Colbert’s
confidential financial information was a breach of the agreement between
Colbert and the Housing Authority. These
claims by Colbert had been asserted in a separate lawsuit already filed by
Colbert.
The
trial court denied the motion to amend the complaint. In its written ruling, the court noted that
another judge had tentatively denied a motion to consolidate Colbert’s case
with Washington’s. The court concluded,
“Washington’s claims are different than Colbert’s claims and the cases should
not be consolidated. Colbert’s claims
are limited to the aftermath of the alleged events between Washington and
Layne. Colbert’s case is not contingent
on common facts or issues of law in the Washington case. The cases are procedurally, legally and
factually different. The court further
finds that consolidation would prejudice defendants and would cause undue jury
confusion. [Citations.].â€
After
the motion to amend was denied, Washington
filed a third amended complaint asserting the following claims as to
himself alone: (1) first cause of
action: hostile work environment and violation of the Fair Employment and
Housing Act (FEHA); (2) second cause of action: sexual harassment and violation
of FEHA; (3) third cause of action: quid pro quo sexual harassment; (4) fourth
cause of action: sexual battery; (5) fifth cause of action: false imprisonment;
(6) sixth cause of action: intentional infliction of emotional distress; (7)
seventh cause of action: negligent infliction of emotional distress; (8) eighth
cause of action: invasion of privacy; (9) ninth cause of action: negligence;
(10) tenth cause of action: invasion of privacy based on a violation of Penal
Code section 630 et seq.; (11) eleventh cause of action: breach of
contract. The second cause of action for
sexual harassment was dismissed by the court.
On
December 30, 2011, defendants filed a motion for summary judgment, or, in the
alternative, for summary adjudication of issues pertaining to each of the
remaining causes of action. The motion
argued that Washington’s claims were barred due to affirmative defenses such as
the statute of limitations, the failure to exhaust administrative remedies,
statutory governmental immunity, and the exclusivity of workers’ compensation
as a remedy. The motion also argued that
certain causes of action were lacking in merit due to the lack of evidence
supporting them. Included in defendant’s
paperwork were a notice of motion, points and authorities, a separate statement
of undisputed material facts, an index of supporting evidence, a request for
judicial notice, and a proposed order.
The proof of service indicates that these documents were served on
Washington via Federal Express on December 30, 2011. The hearing date for the motion was March 23,
2012.
Washington
filed opposition papers on March 7, 2012, challenging the summary judgment
motion exclusively on procedural grounds.
Among other things, he argued that defendant’s separate statement of
undisputed material facts was defective, and claimed that he had not received a
copy of the motion until February 15, 2012, which gave him less notice than
required by statute. (See § 437c,
subd. (a) [requiring 77 days notice for summary judgment motion when served by
overnight delivery].) Washington also complained that the motion relied on
testimony from his deposition, at which he had been under the influence of
psychiatric medication. In their reply
papers, defendants presented evidence that defendants had deposited the summary
judgment papers with Federal Express on December 30, 2011, for overnight
delivery, and had received confirmation that the package was delivered on
December 31, 2011.
The
trial court issued a tentative ruling granting summary judgment. During the hearing on the motion, a lawyer
appearing “on a limited scope†for Washington made clear that the opposition to
the motion was based solely on procedural grounds: “We’re not arguing the merits. There’s plenty of objections to this on the
merits. We believe Mr. Washington
can defeat everything on the merits. But
he is not dealing with the merits here because procedure has been violated,
okay.â€
After
hearing argument, the trial court indicated that its tentative ruling would
stand. It issued a written order setting
forth the basis for its ruling: “Plaintiff has conceded Summary Adjudication
Issues 1 through 6 and the supporting evidence on which they rely, Facts 1
through 46. Thus, no triable issues of
fact exist and Defendants are entitled to judgment as a matter of law, unless
the procedural issues raised by Plaintiff necessitate a different outcome.[
[¶] As to the issue of service, the record shows that Washington
was served. A proof of service is
attached to Defendants’ motion, showing that Washington was served by overnight
Fed Ex delivery on December 30, 2011 at the address he shares with his
girlfriend, Sonja Colbert. . . . Defendants have further produced the Fed Ex
confirmation that the summary judgment papers were delivered to Washington on
December 31, 2011 . . . . The evidence to the contrary, primarily Colbert’s
declaration that no Fed Ex deliveries were made to her home between September
2011 and February 15, 2012, is not admitted as the court sustained Defendants’
objection to that part of her declaration as lacking personal knowledge. [¶] As to whether Defendants can cite to
Washington’s deposition testimony in support of their motion, the court finds
there is no problem here. Washington was
deposed on June 16, 2011. There is no
evidence he was not competent to testify. . . . [¶] Finally, as to the
plethora of purported procedural problems with Defendants’ motion, the court
finds that they are either not real problems or are truly de minimis. . . .
Defendants have fully briefed the issues and provided undisputed evidence to
support them, including documents, discovery responses, deposition testimony
and declarations.†The court also
sustained several of defendants’ objections to Washington’s evidence and
overruled Washington’s objections.
Defendants
filed a memorandum of costs seeking
$5,796.43, which was unopposed by Washington.
The trial court entered a “Judgment Awarding Costs†of $5,796.43 to the
Housing Authority. Subsequently, at
defendants’ request, the court entered an amended judgment awarding the costs
to both the Housing Authority and Layne.
DISCUSSION
I. Summary
Judgment—General Principles
A
defendant moving for summary judgment has the initial burden of showing that
the action lacks merit; i.e., that “one or more elements of the cause of action
. . . cannot be established, or that there is a complete defense to that cause
of action.†(§ 437c,
subd. (p)(2); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar).) If the defendant
makes this initial showing, the burden shifts to the plaintiff to produce some
evidence showing the existence of a triable issue of material fact. (Aguilar,
at p. 849.) The procedural vehicle
for ascertaining whether a triable issue of fact exists is “a separate
statement setting forth plainly and concisely all material facts which the
moving party contends are undisputed.â€
(§ 437c, subd. (b)(1).)
The party opposing a motion for summary
judgment is required to “include a separate statement that responds to each of
the material facts contended by the moving party to be undisputed, indicating
whether the opposing party agrees or disagrees that those facts are
undisputed. The statement also shall set
forth plainly and concisely any other material facts that the opposing party
contends are disputed. . . . Failure to comply with this requirement of a
separate statement may constitute a sufficient ground, in the court’s
discretion, for granting the motion.â€
(§ 437c, subd. (b)(3).)
Where
an order granting summary judgment is challenged on appeal, we review the trial
court’s decision de novo. (
Cal.4th 465, 476.) But while our review
is de novo, it is limited to issues that have been adequately raised and
supported in the appellant’s brief. (
451, 466, fn. 6 (Reyes);
Cal.App.4th 974, 979.)
With
respect to evidentiary objections made by the parties to a summary judgment
motion, we review the court’s rulings for abuse of discretion. (Miranda
v. Bomel Construction Co., Inc. (2010)
187 Cal.App.4th 1326, 1335 (Miranda).) We also review for abuse of discretion a
court’s ruling on the effect of a party’s failure to comply with the Rules of
Court. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118;
Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208 (
II.
Statement Do Not Require Reversal
Washington
argues that defendants’ separate statement of undisputed facts did not comply
with procedural requirements of the California Rules of Court
and could not support an order granting summary judgment and/or
adjudication. We conclude that the
technical violations identified by Washington did not deprive him of adequate
notice or due process and that the trial court did not abuse its discretion in
overruling his objections to the format of the separate statement.
A. Failure
to Repeat Summary Adjudication Issues Verbatim
Washington’s
first complaint is that while the notice of motion identified 10 separate
issues for summary adjudication, the separate statement identified only six
issues and does not repeat verbatim the issues stated in the motion. He claims this violated rule 3.1350(b),
which provides, “If summary adjudication is sought, whether separately or as an
alternative to the motion for summary judgment, the specific cause of action,
affirmative defense, claims for damages, or issues of duty must be stated
specifically in the notice of motion and be repeated, verbatim, in the separate
statement of undisputed material facts.â€
The
first six separate issues for summary adjudication, affecting the first, third,
fifth, eighth, tenth and eleventh causes of action, are essentially the same in
both the notice of motion and separate statement, with minor semantic
differences. For example, Issue 1 in the
notice of motion states, “Defendants the Housing Authority and Ingrid Layne are
entitled to summary adjudication of Plaintiff’s claims for hostile work
environment (1st Cause of Action) and quid pro quo harassment (3rd Cause of
Action) based on their affirmative defense of failure to exhaust administrative
remedies,†while Issue 1 of the separate statement reads, “DEFENDANTS’
AFFIRMATIVE DEFENSE OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BARS
PLAINTIFF’S CLAIMS FOR HOSTILE WORK ENVIRONMENT (1ST CAUSE OF ACTION) AND QUID
PRO QUO HARASSMENT (3RD CAUSE OF ACTION).â€
The difference in the language is not material and the trial court did
not abuse its discretion when it found any defect in this respect to be de
minimis.
The
seventh through tenth issues for summary adjudication that were listed in the
notice of motion indicated that the fourth, fifth, sixth, seventh, eighth and
ninth causes of action are barred by the affirmative defense of governmental
immunity and that the fourth, seventh and ninth causes of action are barred
because workers’ compensation is the exclusive remedy. (See, generally, Miklosy v. Regents of the University of California (2008) 44
Cal.4th 876.) The separate statement
does not list these issues or any undisputed facts in support of these issues,
but as defendants note, the arguments to which those issues pertain were based
solely on the pleadings and did not require the consideration of evidence. The court would have been within its rights
to consider issues seven through 10 as a motion for judgment on the pleadings,
for which no separate statement is required.
(Hand v. Farmers Ins. Exchange
(1994) 23 Cal.App.4th 1847, 1853 [motion for summary adjudication based on the
legal effect of the facts alleged in the complaint “ ‘in effect operated as a
motion for judgment on the pleadings, a motion which fulfills the office of a
general demurrer to test the complaint’s sufficiency to state a cause of
action;’ †see also Pan v. Beverly
Hospital, Inc. (2000) 79 Cal.App.4th 986, 989 [when moving party filed
defective separate statement, court could elect to treat motion for summary
judgment as one for judgment on the pleadings].) The legal basis for the defendant’s argument
was set forth fully in the points and authorities and the trial court did not
abuse its discretion when it determined that Washington was not misled by the
formatting of the motion and separate statement.
B.
Failure to Separately Identify
Each Claim
Washington
next complains that the separate statement combined the defendants’ attack on
first and third causes of action (for hostile work environment and quid pro quo
harassment) in a single issue (alleging a failure to exhaust administrative
remedies). He claims this format
violates rule 3.1350(d), which provides, “The Separate Statement of Undisputed
Material Facts in support of a motion must separately identify each cause of
action, claim, issue of duty, or affirmative defense . . . .†We disagree with Washington. The separate statement does separately list the affirmative defense of exhaustion of
administrative remedies, and includes under one heading the two causes of
action to which that defense applies. In
any event, this aspect of the formatting could not possibly have caused
Washington any confusion, as it was clear defendants were seeking summary
adjudication of the first and third causes of action based on the failure to
exhaust administrative remedies.
C. Failure
to Cite Page Numbers of Documents Designated as Evidence
Rule
3.1113(k) (which applies to motions in general, rather than to summary judgment
motions in particular) provides, “All references to exhibits or declarations in
supporting or opposing papers must reference the number or letter of the
exhibit, the specific page, and, if applicable, the paragraph or line
number.†Washington complains that
defendants, in their separate statement of undisputed facts, referred to
documents without citing the page number, did not identify certain documents by
number, failed to attach a copy of the third amended complaint, and
incorporated certain facts by reference.
He does not explain how these defects—technical violations at best—were
misleading or deprived him of the opportunity to respond to the motion on its
merits. “ ‘Separate statements are
required not to satisfy a sadistic urge to torment lawyers, but rather to
afford due process to opposing parties and to permit trial courts to
expeditiously review complex motions for . . . summary judgment to determine
quickly and efficiently whether material facts are disputed.’ †(Parkview
Villas, supra, 133 Cal.App.4th at
p. 1210.)
D.
Failure to Carry Procedural Burden
In
a somewhat cryptic argument, Washington, after discussing the respective
burdens of parties to a summary judgment motion, states that “Given Defendants’
failure to strictly comply with required procedures on summary
judgment/adjudication, they have failed to carry their threshold burden as a
matter of law.†Because we have
concluded that the trial court properly overruled Washington’s procedural
objections to defendants’ motion, we reject this claim.
III. The
Trial Court Did Not Err in Granting Defendants’ Request for Judicial Notice
The
trial court granted defendants’ request that it take judicial notice of (1) a
12-page fax from DFEH responding to a request for public records, consisting of
documents pertaining to the discrimination claim made by Washington in December
2009; and (2) a letter from the Equal Employment Opportunity Commission (EEOC)
in response to a Freedom of Information Act request, stating it had no record
of a claim made by Washington against the Housing Authority. Washington argues that judicial notice was
inappropriate because the documents were neither “itemized†not
authenticated. We disagree.
The
records, reports, and orders of administrative agencies are official records of
which a court may take judicial notice.
(Evid. Code, § 452, subds. (c), (g) & (h); SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68,
82, fn. 8; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.) Under
Evidence Code section 1280, “Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered
in any civil or criminal proceeding
to prove the act, condition, or event if all of the following applies: [¶] (a)
The writing was made by and within the scope of duty of a public employee. [¶]
(b) The writing was made at or near the time of the act, condition, or event.
[¶] (c) The sources of information and method and time of preparation were such
as to indicate its trustworthiness.â€
Defendants
presented the DFEH and EEOC documents in support of their argument that
Washington did not exhaust his administrative remedies as necessary for the
first and third causes of action, which alleged hostile work environment and
quid pro quo harassment. The documents
show that while Washington completed a pre-complaint questionnaire with DFEH in
which he confirmed having consensual sex with Layne and requested a paternity
test for her child, he did not file a formal charge or obtain a right-to-sue
letter on charges of hostile work
environment and harassment. (See,
generally, Okoli v. Lockheed Technical
Operations Co. (1995) 36 Cal.App.4th 1607, 1612-1614.)
Washington
claims that the DFEH documents were not “itemized†as required by rule 3.1113
because the request for judicial notice did not separately list each document
received from DFEF. Defendants’ request
for judicial notice clearly stated that the documents attached as Exhibit 1 in
support of the motion for summary judgment/adjudication, and of which judicial
notice was sought, were “provided by [DFEH] in response to a Public Records Act
request†by counsel for appellant, and included, “an Amended Certification in
Response to Public Records Request, Case Management Information System (“CMISâ€)
printout of the status of Leo Washington’s December 2009 appointment with the
DFEH, January 7, 2010 letter from DFEH Consultant Debbie Booker to Leo
Washington, Pre-Complaint Questionnaire and Intake Notes.†This “itemization†of the documents was sufficient
to comply with rule 3.1113.
Washington
also complains that the documents from DFEH and the EEOC were not properly
authenticated. The DFEH documents were
accompanied by an amended certification in response to a public records request
signed by the custodian of records for that agency. Evidence Code sections 1530 through 1532
establish a presumption that documents are true and correct copies of official
records when certified by the issuing agency.
(Ambriz v. Kelegian (2007) 146
Cal.App.4th 1519, 1530.)
The
EEOC document stating there was no record of any complaint by Washington (a
fact he does not appear to contest) was not certified, but it was signed by a
deputy director of that agency and was sent in response to a Freedom of
Information Act request by defendants’ counsel.
“ ‘If a letter . . . is sent to a person and a reply is received in due
course purporting to come from that person, this is sufficient evidence of
genuineness.’ †(Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 320, 321; see also
148 Cal.App.4th 71, 83 [Freedom of Information Act documents received and
authenticated by attorney were admissible as official records].)
IV. The Trial Court Properly
Concluded that Washington Was Timely Served with the Motion for Summary
Judgment/Summary Adjudication
Washington
argues that the motion for summary judgment/summary adjudication should have
been denied because he was not timely served.
He claims that as a consequence of the late service, he did not have
sufficient time to oppose the summary judgment motion on its merits. We
disagree.
The
hearing date for the motion was March 23, 2012.
Under section 437c, subdivision (a), a motion for summary judgment
must be served on the opposing party at least 77 days before the hearing if
service is made by Federal Express or another form of overnight delivery. Under section 1013, subdivision (c), service
is complete when the documents are deposited with an overnight carrier. (See Barefield
v. Washington Mut. Bank (2006) 136 Cal.App.4th 299, 302-303.) The proof of service filed by defendants
shows that the summary judgment papers were deposited with Federal Express on
December 30, 2011, for service at the address of Sonja Colbert’s home, where
Washington resided. This provided more
than the 77 days of notice required by statute.
Washington
protested in his opposition papers that he did not receive a copy of the
summary judgment motion until February 15, 2012. He submitted a declaration by Colbert stating
that no Federal Express deliveries were made to her home between September 2011
and February 15, 2012. Defendants
objected to Colbert’s declaration on the ground that she lacked sufficient
personal knowledge of this fact, and submitted a confirmation by Federal
Express that the papers had been delivered to Colbert’s address on December 31,
2011.
Whether
service was properly made as shown by a proof of service is a question of fact
for the trial court, and its determination is binding on an appellate court if
supported by substantial evidence. (See
(2010) 186 Cal.App.4th 959, 973; Glasser
v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011; Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209,
212.) Here, the court properly sustained
the defendants’ objection to Colbert’s declaration (who could not vouch for the
complete lack of Federal Express deliveries during a six-month period unless
she could also establish that she never left her house) and relied on the proof
of service filed by defendants to find that service had been timely made. Substantial evidence supports the trial
court’s conclusion that Washington was given the notice required by statute.
V. Washington’s
Deposition Testimony Could be Considered as Evidence Supporting Summary
Judgment
Washington
argues that the court erred in considering his own deposition as evidence
supporting the summary judgment motion, claiming he was under the influence of
he gave the testimony. He did not
present any competent evidence that his medication actually rendered him
incompetent to testify; hence, the trial court did not abuse its discretion in
concluding the deposition excerpts were admissible. (Miranda,
supra, 187 Cal.App.4th at p. 1335.)
Moreover, Washington cannot demonstrate prejudice when he has not even
attempted to specify which portions of his deposition testimony were relied
upon by the trial court in granting summary judgment. (See Suarez
v. Life Ins. Co. of North America (1988) 206 Cal.App.3d 1396, 1407 [party
to summary judgment motion required to show that erroneous evidentiary ruling
was prejudicial].)
VI.
Denying Washington’s Motion to Amend the Complaint
In
2010, Washington’s girlfriend Sonja Colbert filed a separate civil complaint
against Layne and the Housing Authority alleging several causes of action based
on Layne’s purported use of confidential information concerning Colbert. Before defendants moved for summary judgment,
Washington filed a motion to amend the complaint to name Colbert as an
additional plaintiff in his lawsuit. The
court denied the motion to amend, concluding that Colbert’s claims were different
from Washington’s, having arisen in the aftermath of the alleged relationship
between Washington and Layne. Washington
now challenges the order denying the motion to amend, which we consider as an
interim ruling appealable from the final judgment in this case. (See, generally, Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1544-1545 [interim
orders may be reviewed in appeal from final judgment under “one final judgment
ruleâ€].)
We
conclude the court did not abuse its discretion in denying the motion to
amend. (See M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202
Cal.App.4th 1509, 1536.) Because Colbert
had already filed a separate lawsuit, the amendment was not required for her to
pursue her claims. Washington does not
suggest how he himself was prejudiced by the order. Washington’s claims were based on alleged
sexual misconduct by Layne, her use of confidential information she received
about him from his employment files, and her breach of an agreement to pay him
for remodeling work. These claims were
“procedurally, legally and factually different†from Colbert’s, which were
based Layne’s alleged use of confidential financial information that the
Housing Authority possessed about Colbert due to Colbert’s status as a Section
8 housing vendor. In any event, given
that Washington’s claims have now been resolved by summary judgment, the issue
of consolidating Colbert’s claims with his own have been rendered moot. (See In
re I.A. (2011) 201 Cal.App.4th 1484, 1490 [issue is moot when it is impossible
for appellate court to grant requested relief].)
VII. Amendment
of Judgment Awarding Costs
After
summary judgment was granted, defendants jointly filed a memorandum of costs
seeking to recover $5,796.43, along with a proposed judgment in that
amount. The proposed judgment did not
mention defendant Layne, but purported to award costs to the Housing Authority
only. Washington did not challenge the
amount of the costs claimed by defendants, and the court signed and entered the
proposed judgment. Defendants then
submitted a proposed amended judgment awarding costs to both the Housing
Authority and Layne, which the court signed and entered.
With
no citation to authority, Washington complains this amendment was an improper
“unilateral†action. We disagree. “Where a judgment fails to express the
court’s true intentions as they existed at the time of rendition, the court
generally has the power to correct the judgment to reflect those
intentions.†(People v. Landon White Bail Bonds (1991) 234 Cal.App.3d 66,
77.) Here, the memorandum of costs was
submitted in the name of both defendants, and there is no suggestion the court
intended to award costs solely to the Housing Authority. The entry of an amended judgment to correct
this oversight was not unauthorized or an abuse of discretion. Nor has Washington been prejudiced, when the
total amount of the judgment against him has not changed.
DISPOSITION
The
judgment is affirmed. Ordinary costs on
appeal are awarded to defendants/ respondents.
NEEDHAM,
J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
Procedure unless otherwise indicated.
in the Appellant’s Appendix but are not at issue in this appeal.
