Day v. Lupo Vine Street ( 2018 )

Filed 4/11/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARYAM DAY et al., B282996
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC623354)
v.
LUPO VINE STREET, L.P., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Ruth A. Kwan, Judge. Affirmed.
LippSmith Law, MaryBeth LippSmith; Ryan Law and Andrew T.
Ryan for Plaintiffs and Appellants.
Hartsuyker, Stratman & Williams-Abrego, John R. Miller; Horvitz
& Levy, Stephen E. Norris and Eric S. Boorstin for Defendants and
Respondents.
Health and Safety Code1 section 104113 requires every “health
studio” – which is defined as “a facility permitting the use of its
facilities and equipment or access to its facilities and equipment, to
individuals or groups for physical exercise, body building, reducing,
figure development, fitness training, or any other similar purpose, on a
membership basis” (§ 104113, subd. (h)) – to acquire and maintain an
automated external defibrillator (AED) on the premises. The question
presented in this case is: Does a commercial landlord who leases space
to an operator of a health studio owe a duty under this statute or the
common law to acquire and maintain an AED at the space or ensure
that the operator does so? We conclude there is no such duty.
Accordingly, we affirm the trial court’s summary judgment in favor of
defendants Lupo Vine Street L.P. and Sarah M. Lupo as Trustee of the
Fred D. Lupo and Sarah M. Lupo Living Trust (collectively, Lupo).
BACKGROUND
Lupo owns a multi-unit commercial building in Los Angeles. In
2011, Lupo entered into a five-year lease with Wild Card Boxing Club,
Inc.2 for two units, covering approximately 5,000 square feet of space,
for use as a “Boxing Club/Athletic Club.” Before signing the lease on
behalf of Lupo, John Lupo inspected the premises by taking a “visual
1 Further undesignated statutory references are to the Health and Safety
Code.
2 Although the lease names the tenant as “Wildcard Boxing Club, Inc.,”
Freddie Roach (who signed the lease on behalf of Wildcard Boxing Club, Inc.)
ran the business as Wild Card Boxing Gym.
2
walk-through, general bird’s eye view,” looking for “[r]oof leaks, water
leaks, running toilet, plaster falling off the walls.” Lupo has never had
any ownership or other interest in Wild Card.
On January 30, 2016, Omorishanla Olayinka was working out
with a trainer at Wild Card when he suffered a fatal heart attack. Wild
Card did not have an AED on the premises.
Olayinka’s surviving spouse, Maryam Day, and daughter, Ayodele
Omotolani Ifatosin Olayinka (through her guardian ad litem Maryam
Day), and Olayinka’s estate filed a lawsuit against Wild Card, its owner
Freddie Roach, and Lupo, alleging claims for negligence per se and
negligence based upon the failure to maintain an AED on the premises
of Wild Card.
Lupo moved for summary judgment on the ground, among others,
that it had no duty under section 104113 or the common law to furnish
the premises with an AED or to ensure that the gym owner did so. The
trial court agreed. It found that Lupo did not have a statutory duty
because the definition of “health studio” does not include “mere property
owners and/or landlords.” It also concluded that it would be
unreasonable to impose a duty on a mere property owner or landlord to
inspect property being leased for use as a boxing training gym to ensure
compliance with section 104113. The court entered judgment in favor of
Lupo, from which plaintiffs timely filed a notice of appeal.
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DISCUSSION
A. Statutory Duty
As noted, section 104113 requires every “health studio” to acquire
and maintain an AED (§ 104113, subd. (a)) on its premises, and defines
“health studio” as “a facility permitting the use of its facilities and
equipment or access to its facilities and equipment, to individuals or
groups for physical exercise, body building, reducing, figure
development, fitness training, or any other similar purpose, on a
membership basis” (§ 104113, subd. (h)). Plaintiffs argue on appeal
that Lupo falls within the definition of “health studio” – and thus has a
statutory duty to acquire and maintain an AED – because it expressly
agreed in its lease with Wild Card to allow people to use its “facility” for
physical exercise. We disagree.
In making this argument, plaintiffs ignore two important
components of the definition of a “health studio.” To meet the
definition, a “health studio” must permit the use or access to “its
facilities and equipment” to individuals or groups on a membership
basis. (§ 104113, subd. (h), italics added.) Plaintiffs point to no
evidence that Lupo offered anyone the use of its equipment, let alone
that it did so on a membership basis. Thus, Lupo clearly falls outside
the definition of “health studio.”
The fact that section 104113 did not intend to include within its
scope landlords who simply lease space to a “health studio” is reinforced
by other provisions of the statute. The statute does not merely require
that health studios acquire and maintain an AED. It also requires the
health studio, among other things, to check the AED for readiness after
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each use and at least once every 30 days, and to maintain records of
those checks (§ 104113, subd. (e)(2)(B)); to ensure that a person who
uses the AED notifies the emergency medical services system as soon as
possible and reports the use of the AED (§ 104113, subd. (e)(2)(C)); to
ensure that at least one employee per AED completes a training course
in cardiopulmonary resuscitation and AED use, and that trained
employees are available to respond to an emergency during staffed
operating hours (§ 104113, subd. (e)(2)(D)); to report to the Legislature
the average number of hours per week the health studio was staffed,
the total number of reported cardiac incidents that occurred during
unstaffed hours, and whether any of those incidents resulted in death
(§ 104113, subd. (e)(3)(D)).
A landlord who merely leases space to a “health studio” is not in a
position to comply with any of these requirements. Thus, we find that
Lupo did not have a statutory duty to acquire or maintain an AED.3
B. Common Law Duty
Plaintiffs contend that even if Lupo did not have a statutory duty
to acquire and maintain an AED, it had a common law duty “to ensure
the premises were equipped with an AED before Wild Card took
3 Because we find that the plain language of section 104113
demonstrates that a landlord who merely leases space to a tenant to operate
a heath studio is not required to meet the requirements of that statute, we
deny Lupo’s request that we take judicial notice of the legislative history of
the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [where there
is no ambiguity in the statutory language, “we presume the lawmakers
meant what they said, and the plain meaning of the language governs”].)
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possession of the boxing gym.” They contend that this duty required
Lupo either to provide an AED at the premises that it leased to Wild
Card to operate a boxing gym, or to specifically require Wild Card to
obtain and maintain an AED as a condition of the lease. We find no
such duty applies under the circumstances presented here.
1. Negligence Principles
“The elements of a cause of action for negligence are: the
‘defendant had a duty to use due care, that he [or she] breached that
duty, and that the breach was the proximate or legal cause of the
resulting injury.’” (Vasquez v. Residential Investments, Inc. (2004) 118
Cal.App.4th 269, 278 (Vasquez).) “The existence of duty is a question of
law to be decided by the court [citation], and the courts have repeatedly
declared the existence of a duty by landowners to maintain property in
their possession and control in a reasonably safe condition. [Citation.]
However, acknowledgment of the broad proposition that landowners
have a duty to exercise reasonable care to maintain their property in a
safe condition provides scant guidance to a court that must determine
the existence of the landlord’s duty in a particular case.” (Id. at pp. 278-
279.)
With regard to landlords, “reasonable care ordinarily involves
making sure the property is safe at the beginning of the tenancy, and
repairing any hazards the landlord learns about later.” (Stone v. Center
Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.)
“‘Because a landlord has relinquished possessory interest in the land,
his or her duty of care to third parties injured on the land is attenuated
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as compared with the tenant who enjoys possession and control. Thus,
before liability may be thrust on a landlord for a third party’s injury due
to a dangerous condition on the land, the plaintiff must show that the
landlord had actual knowledge of the dangerous condition in question,
plus the right and ability to cure the condition.’” (Id. at p. 612, quoting
Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131-1132, disapproved in
part on another ground in Delgado v. Trax Bar & Grill (2005) 36
Cal.4th 224, 247-250.)
The existence of a duty “‘is not an immutable fact, but rather an
expression of policy considerations leading to the legal conclusion that a
plaintiff is entitled to a defendant’s protection.’ [Citation.] . . .
‘“[D]uty” is a question of whether the defendant is under any obligation
for the benefit of the particular plaintiff; and in negligence cases, the
duty is always the same – to conform to the legal standard of reasonable
conduct in the light of the apparent risk.’ [Citation.]” (Vasquez, supra,
118 Cal.App.4th at p. 279.)
In Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), the
Supreme Court identified a number of factors that courts may consider
to determine whether a duty applies in a particular case: “the
foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached
to the defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability
for breach, and the availability, cost, and prevalence of insurance for
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the risk involved.” (Id. at p. 113.) “It is settled, however, that ‘the chief
element in determining whether defendant owes a duty or an obligation
to plaintiff is the foreseeability of the risk.’” (Sun ‘n Sand, Inc. v.
United California Bank (1978) 21 Cal.3d 671, 695.) But even when a
risk is forseeable, “‘policy considerations may dictate a cause of action
should not be sanctioned.’” (Parsons v. Crown Disposal Co. (1997) 15
Cal.4th 456, 476.)
With these principles in mind, we address plaintiffs’ contention
that Lupo owed a duty to Wild Card’s patrons to (1) provide an AED on
the premises where Wild Card operated its boxing gym, or (2) require as
a condition of Lupo’s lease with Wild Card that Wild Card provide an
AED on the premises.
2. Duty of Lupo to Provide an AED
The Supreme Court recently addressed the issue whether a large
department store owed its customers a duty to make available on its
premises an AED for use in a medical emergency. (Verdugo v. Target
Corp. (2014) 59 Cal.4th 312 (Verdugo).) Although there are two
important distinctions between that case and the present case (which
we address below), the Court’s opinion provides useful guidance for our
analysis of the duty owed here.
The Supreme Court observed that when determining whether a
business owes a “duty to take precautionary steps prior to the time . . .
an injury or illness has occurred” – such as having an AED on premises
in case a patron suffers a cardiac arrest – California courts primarily
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look at “a number of factors, including (1) the degree of foreseeability
that the danger will arise on the business’s premises and (2) the
relative burden that providing a particular precautionary measure will
place upon the business. [Citations.] If the relative burden of providing
a particular precautionary safety or security measure is onerous rather
than minimal, the governing cases have held that absent a showing of a
‘heightened’ or ‘high degree’ of foreseeability of the danger in question,
it is not appropriate for courts to recognize or impose a common law
duty to provide the measure.” (Verdugo, supra, 59 Cal.4th at p. 338.)
Addressing the burden of providing an AED for the use of Target’s
patrons, the Supreme Court found it would be “considerably more than
a minor or minimal burden on a business establishment. The statutory
provisions and related regulations establishing the prerequisites to civil
immunity for those entities acquiring an AED reflect the numerous
related requirements that a jury is likely to view as reasonably
necessary to comply with such a duty. Apart from the initial cost of the
AEDs themselves, significant obligations with regard to the number,
the placement, and the ongoing maintenance of such devices, combined
with the need to regularly train personnel to properly utilize and
service the AEDs and to administer CPR, as well as to have trained
personnel reasonably available on the business premises, illustrate the
magnitude of the burden. (See Health & Saf. Code, § 1797.196, subd.
(b); Cal. Code Regs., tit. 22, §§ 100031–100056.2.) Compliance with
these numerous obligations clearly implicates more than a minor or
minimal burden.” (Verdugo, supra, 59 Cal.4th at p. 340.)
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With respect to foreseeability, the Supreme Court found there was
no allegation that any aspect of Target’s operations or the activities that
its customers engage in on the premises gives rise to a high degree of
foreseeability that those customers will suffer cardiac arrest on the
premises. “Instead, it appears that the risk of such an occurrence is no
greater at Target than at any other location open to the public.”
(Verdugo, supra, 59 Cal.4th at p. 340.) Therefore, the Court concluded
that Target owed no common law duty to its customers to acquire and
make available an AED.
As noted, there are two significant differences between the facts of
Verdugo and the facts of this case. First, Verdugo involved the duty
owed by the operator of a business to its customers, whereas the present
case involves the duty of a landlord to the patrons of its tenant’s
business – a far more attenuated relationship. Second, the customers in
Verdugo did not have any greater risk of suffering cardiac arrest on the
premises than at any other place, while the patrons of the boxing gym
were at a somewhat heightened risk of suffering cardiac arrest while
working out on the premises. But on balance, those differences weigh
in favor of finding no duty here.
First, the burden that the Supreme Court found was “considerably
more” than minor or minimal with respect to Target would be even
greater with respect to Lupo. The Court noted that providing an AED
does not simply entail purchasing the device and keeping it on the
property. Rather, it requires compliance with numerous statutory and
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regulatory obligations.4 Those include (1) ensuring that the AED is
maintained and tested according to the operation and maintenance
guidelines set forth by the manufacturer; (2) ensuring that the AED is
tested at least biannually and after each use; and (3) ensuring that an
inspection is made of all AEDs on the premises at least every 90 days
for potential issues related to operability of the device. (§ 1797.196,
subd. (b).) Unlike Target, which was the operator of the business and
therefore had possession and control of the premises and would have
the ability to ensure compliance with these requirements, Lupo is a
landlord out of possession of the premises. Imposing a duty to provide
an AED in this instance would require Lupo to stay in constant contact
with its tenant to see if the AED had been used (so it could be tested)
and to obtain permission to enter the premises at least every 90 days to
inspect the AED. This is a far greater burden than that which would
have been imposed on Target.
Second, although plaintiffs contend that it was foreseeable that a
patron of the boxing gym might suffer cardiac arrest because “‘[i]t is a
matter of common experience and knowledge’ that people may
experience heart problems during strenuous exercise,” we question
whether that purported “common experience and knowledge” may be
imputed to Lupo, inasmuch as there is no evidence that any of the
4 We note that some of the statutes and regulations cited by the Supreme
Court in Verdugo, supra, 59 Cal.4th at page 340 have been amended or
repealed, resulting in the elimination of some of the requirements. (See
Stats. 2015, ch. 264 (Sen. Bill No. 658), § 2.) While those amendments
somewhat lessened the burden, many of the requirements remain.
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principals of Lupo had any experience in the sports, health, or fitness
business. (See Rotolo v. San Jose Sports & Entertainment, LLC (2007)
151 Cal.App.4th 307, 328 (Rotolo) [finding that knowledge of statements
made in sports journals and other publications that cardiac arrest is the
leading cause of death among athletes who participate in strenuous
sports activities cannot be imputed to the defendant, an operator of a
hockey rink], disapproved on other grounds in Verdugo, supra, 59
Cal.4th at pp. 328-329.) Thus, it is uncertain whether there was a
sufficiently “‘heightened’ or ‘high degree’ of foreseeability of the danger
in question” (Verdugo, supra, 59 Cal.4th at p. 338) to outweigh the
considerable burden that would be placed on Lupo if we were to find a
common law duty to provide an AED on the premises of the boxing gym.
Finally, even if it is “common experience and knowledge” that
people who engage in strenuous exercise may experience heart
problems, the question remains whether it is sound policy to require a
landlord to investigate all of the dangers posed by the operation of the
business of each of its tenants and to provide measures or devices to
mitigate injuries caused by the tenant’s business rather than by any
dangerous condition on the property itself. We conclude it is not. “A
landlord cannot be held to be responsible for all dangers inherent in a
dangerous business.” (Mora v. Baker Commodities, Inc. (1989) 210
Cal.App.3d 771, 780.) Accordingly, we hold that the trial court correctly
found that Lupo did not owe a duty to provide an AED on the premises
where Wild Card operated its boxing gym.
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3. Duty of Lupo to Ensure That Wild Card Provided an AED
Having determined that Lupo did not owe a duty to Wild Card’s
patrons to provide an AED on the premises, we must now determine
whether Lupo owed a duty to require as a condition of its lease that
Wild Card provide an AED on the premises. The short answer is that
Lupo did require Wild Card to provide an AED, because the lease
required Wild Card to comply with all laws and statutes, which would
include section 104113.5 But even if this provision was insufficient
because it did not specifically identify section 104113, we nevertheless
conclude, based upon the Rowland factors, that Lupo did not owe a duty
to specifically require Wild Card to provide an AED at the premises.
Applying the first Rowland factor – the foreseeability of harm to
the plaintiff – requires a two-step process under the circumstances here.
First, we must determine the foreseeability that Olayinka would suffer
a sudden cardiac arrest. Second, we must determine the foreseeability
that Wild Card would ignore its statutory duty to provide an AED while
operating a boxing gym.
As discussed in Section B.2., ante, plaintiffs contend it is a matter
of “common experience and knowledge” that there is an increased risk
of suffering heart problems for someone who is engaging in strenuous
5 Specifically, the lease stated: “Tenant shall not do anything or suffer
anything done in or about the Premises . . . which will in any way conflict
with any law, statute, ordinance or other governmental rule, regulation or
requirement. . . . Tenant shall promptly comply with all such governmental
measures, both federal and state and county or municipal . . . whether those
statutes, ordinances, regulations and requirements are now in force or are
subsequently enacted.”
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exercise, but it is uncertain whether that “common experience and
knowledge” can be imputed to Lupo. Moreover, Wild Card, as an
experienced operator of a boxing gym, was in a far better position to
recognize the risk to its patrons than was Lupo, a mere landlord. (See
Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 777 [affirming dismissal
on demurrer of negligence claim against landlord, finding that although
it could not say as a matter of law that the plaintiff’s injury was
unforeseeable, “we must nonetheless recognize that [the defendant’s]
ability to foresee the danger was limited in his role as a landlord”].)
But even if we were to find in the first step that it was foreseeable
to Lupo that Wild Card’s patrons were at heightened risk of suffering
sudden cardiac arrest, we find it was not reasonably foreseeable that
Wild Card would ignore its statutory duty. “[E]very person has a right
to presume that every other person will perform his duty and obey the
law and in the absence of reasonable ground to think otherwise, it is not
negligence to assume that he is not exposed to danger which could come
to him only from violation of law or duty by such other person.” (Celli v.
Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523.) In this
case, there is no evidence to suggest that there was any reason for Lupo
to think that Wild Card would not perform its duty under the law.
Thus, we conclude it was not reasonably foreseeable to Lupo that Wild
Card would not provide an AED on the premises while it operated a
boxing gym.
Because, as the Supreme Court has repeatedly instructed,
“foreseeability is a ‘crucial factor’ in determining the existence and
scope of a legal duty” (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at
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p. 237), we might end our analysis here and find that Lupo had no duty
to ensure that Wild Card provided an AED on its premises. But
application of the remaining Rowland factors also leads us to conclude
there is no such duty.
The second factor – the degree of certainty that the plaintiff (or
plaintiffs’ decedent) suffered injury – weighs somewhat in favor of
plaintiffs. While there is no doubt that Olayinka suffered a cardiac
arrest, it is not certain that his death would have been prevented had
an AED been available on the premises. The remaining factors,
however, weigh in favor of finding no duty.
With regard to the third factor – the closeness of the connection
between the defendant’s conduct and the injury suffered – there is no
connection between anything Lupo did or did not do and Olayinka’s
cardiac arrest. In this respect, this case is similar to Rotolo, in which
the survivors of a teenager who suffered a heart attack while playing
hockey at the defendants’ facility sought to recover negligence damages
for the defendants’ failure to notify users of the facility of the existence
and location of an AED on the premises. The court found that “[e]ven
assuming . . . that respondents possessed a general knowledge that
athletes may succumb to sudden cardiac arrest during strenuous
activities, they could not have prevented such an occurrence, which is a
risk assumed by those playing the sport. There is therefore no close
connection between anything respondents did or did not do and the
injury suffered by [the victim] that led to his death.” (Rotolo, supra, 151
Cal.App.4th at p. 337.)
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The fourth factor – the moral blame attached to the defendant’s
conduct – also favors Lupo. “[T]his factor in the duty analysis is
intended to describe a high degree of moral culpability beyond that
associated with ordinary negligence. ‘“Moral blame has been applied to
describe a defendant’s culpability in terms of the defendant’s state of
mind and the inherently harmful nature of the defendant’s acts. To
avoid redundancy with the other Rowland factors, the moral blame that
attends ordinary negligence is generally not sufficient to tip the balance
of the Rowland factors in favor of liability. [Citation.] Instead, courts
have required a higher degree of moral culpability such as where the
defendant (1) intended or planned the harmful result [citation]; (2) had
actual or constructive knowledge of the harmful consequences of their
behavior [citation]; (3) acted in bad faith or with a reckless indifference
to the results of their conduct [citations]; or (4) engaged in inherently
harmful acts [citation].”’ [Citations.]” (Rotolo, supra, 151 Cal.App.4th
at pp. 337-338.) There is no evidence that Lupo intended Olayinka’s
death, had knowledge that its failure to require Wild Card to provide an
AED would result in Olayinka’s death, acted in bad faith, or engaged in
any inherently harmful acts. Thus, there is no moral blame to be
assigned to Lupo.
With regard to the fifth factor – the policy of preventing future
harm – the Legislature has already mandated that the operators of all
health studios provide an AED on their premises. Thus, there is no
need to impose a duty upon the landlord to prevent future harm.
The sixth factor – the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with
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resulting liability for breach – also weighs in favor of not imposing a
duty on a commercial landlord to specifically require its tenant to
provide an AED. As discussed in Section B.2., ante, imposition of such a
duty would in essence require commercial landlords to investigate each
tenant’s business to determine what, if any, dangers that business
poses to its patrons, and then to determine what, if any, measures could
be taken to mitigate those dangers, and then require those measures be
taken as a condition of the lease. This is too great a burden to impose
here, especially in light of the fact that Wild Card already was required
by statute to provide an AED to protect its patrons.
The final Rowland factor – the availability, cost, and prevalence of
insurance for the risk involved – is not at issue here, because the record
before the trial court did not include any evidence regarding insurance.6
(See Formet v. The Lloyd Termite Control Co. (2010) 185 Cal.App.4th
9595, 604 [court cannot evaluate insurance factor in the absence of
evidence regarding liability insurance].)
In sum, the balance of the Rowland factors weigh in favor of
finding that Lupo did not owe plaintiffs a duty to ensure that Wild Card
obtain and maintain an AED on the premises where it operated its
boxing gym. Accordingly, the trial court did not err in granting Lupo
summary judgment on the ground that plaintiffs could not establish a
necessary element of their negligence cause of action.
6 Although plaintiffs argued that this factor favored imposing a duty
upon Lupo in their appellants’ opening brief, they conceded in their
appellants’ reply brief that the record before the trial court contained no
evidence of insurance.
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DISPOSITION
The judgment is affirmed. Lupo shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.
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