Clarity Co. Consulting v. Gabriel ( 2022 )

Filed 4/12/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CLARITY CO. CONSULTING, 2d Civil No. B311823
LLC, (Super. Ct. No. 56-2020-
00547889-CU-BC-VTA)
Plaintiff and Respondent, (Ventura County)
v.
LARRY GABRIEL,
Defendant and Appellant.
This appeal illustrates an attorney’s misuse of the anti-
SLAPP statute. (Code of Civ. Proc. § 425.16.)1 “[H]owever
efficacious the anti-SLAPP procedure may be in the right case, it
can be badly abused in the wrong one, resulting in substantial
cost—and prejudicial delay.” (Grewal v. Jammu (2011) 191
Cal.App.4th 977, 981.) This is the wrong case. Appellant was
given more than adequate notice in the trial court that his anti-
SLAPP motion was not designed for this contractual dispute. He
has been given the same notice on appeal. The warnings should
have given him pause. They did not.
All statutory references are to the Code of Civil
1
Procedure.
What we said over twenty years ago is as true today as it
was then: “[w]e . . . observe that trial attorneys who prosecute
their own appeals, such as appellant [and his law firm], may have
‘tunnel vision.’ Having tried the case themselves, they become
convinced of the merits of their cause. They may lose objectivity
and would be well served by consulting and taking the advice of
disinterested members of the bar, schooled in appellate practice.”
(Estate of Gilkison (1998) 65 Cal.App.4th 1446, 1449-1450.)
Respondent Clarity Co. Consulting, LLC, and ONclick
Healthcare, Inc. (ONclick), entered into a written contract
whereby respondent agreed to provide services to ONclick on an
hourly basis. ONclick “is a start-up health care company that
was formed in 2019.” Appellant Larry Gabriel, a licensed
California attorney, is the General Counsel of ONclick.
ONclick did not pay for the services rendered. So
respondent filed a complaint alleging an ordinary breach of
contract action and related causes of action against ONclick,
appellant, and other persons associated with ONclick. Acting in
his individual capacity, appellant filed a special motion to strike
the complaint as a strategic lawsuit against public participation
(SLAPP). The other defendants did not join in the motion. The
motion was denied. This appeal is from the trial court’s orders
denying the motion and awarding respondent its attorney fees as
a sanction for making a frivolous anti-SLAPP motion. (§ 425.16,
subd. (c)(1).)
Appellant contends that the trial court erroneously
determined that he had failed to satisfy the first step of the anti-
SLAPP statute, i.e., he had not made a prima facie showing that
respondent’s causes of action were based on protected activity.
He also claims that the trial court abused its discretion in
2
awarding attorney fees incurred by respondent in opposing the
anti-SLAPP motion.2
We affirm. We grant respondent’s motion for sanctions for
taking a frivolous appeal. We order appellant and his counsel to
pay sanctions of $12,798.50 to respondent and $8,500 to the clerk
of this court.
Respondent’s Complaint
The complaint alleged: “Defendants breached the contract
[the contract between respondent and ONclick] . . . by failing and
refusing to pay for the services contemplated by Defendants and
completed by [respondent]. Multiple demands for payment have
been made. To date, no payment in any amount has been
provided.” Respondent claimed that it had “sustained damages
in the minimum amount of $63,500.00.” The prayer for relief
requested both compensatory and punitive damages.
The complaint consisted of the following six causes of
action, each of which was against all defendants: (1) breach of a
written contract, (2) breach of an oral agreement, (3) unjust
enrichment, (4) breach of a covenant of good faith and fair
dealing, (5) intentional misrepresentation, and (6) concealment.
In his opening brief, appellant claims that his motion to
strike was directed at only the fifth cause of action for intentional
misrepresentation and the sixth cause of action for concealment.
“[T]he [m]otion was not addressed to the breach of contract
action.” But appellant’s motion to strike expressly recited that it
2 “An attorney fee award in connection with the denial of a
special motion to strike is sufficiently interrelated with the denial
that the fee award is reviewable on appeal from the order
denying the special motion to strike.” (Chitsazzadeh v. Kramer &
Kaslow (2011) 199 Cal.App.4th 676, 680, fn. 2.)
3
was directed at respondent’s “complaint in its entirety.” Since
appellant’s briefs discuss only the fifth and sixth causes of action,
we limit our analysis to these causes of action.
The fifth cause of action alleged that respondent had
detrimentally relied on defendants’ misrepresentations
concerning ONclick’s financial health and “Defendants’ ability to
pay for services . . . provided by [respondent] pursuant to the
Contracts.” Defendants intentionally misrepresented that they
“were not in financial jeopardy and that ONclick . . . was
financially sound and had secured significant investor financing
to operate its business.” Respondent was “deceived into believing
that compliance with the terms of the Contracts would and could
occur.” “In furtherance of the fraudulent misconduct and in an
attempt to secure the services of [respondent] . . . , Defendants
engaged in overt attempts to hire Jennifer McCoy, the President
and Chief Executive Officer of [respondent], as full-time Chief
Operating Office[r] of ONclick Healthcare, Inc. . . . [T]he . . .
[proposed] employment contract [was] valued in excess of
$1,000,000 annually. All of these negotiations . . . occurred while
Defendants all knew, but failed to represent . . . that Defendants
had no ability to finance such a contract since there were no
funds with which to do so. . . . [I]n reliance on the good faith and
fair dealings which [respondent] assumed were occurring, [it]
continued to perform work on behalf of Defendants despite never
having been paid to date.” Respondent “declined other
opportunities from existing and potential clients which resulted
in a loss of income . . . .”
The sixth cause of action alleged: “Defendants concealed
from [respondent] certain information regarding the financial
soundness and ability to pay for services which Defendants
4
sought [respondent] to perform.” The concealment was “a ruse
designed to secure the services of [respondent] under false
pretenses because Defendants could not operate without the work
product created by and the services performed by [respondent].”
Had respondent been aware that ONclick was in financial
jeopardy, it “would not have engaged in the Contracts and/or
would have taken additional safeguards to ensure payment for
services contemplated and performed, such as advance payment
for services.”
Appellant’s Motion to Strike
Appellant alleged that at all times he had acted “solely in
his role as the general counsel of ONclick.” “[H]e was not
involved in the negotiations of the [service] contract with
[respondent], is not a party to [that] contract and only became
involved in negotiations with [respondent] as counsel for ONclick
in an attempt to work out a long-term employment relationship
between ONclick and [respondent’s] CEO [Jennifer McCoy] . . . by
and through [respondent’s] attorney, Stephen Fishback.” “When
the negotiations broke down, and Mr. Fishback was unhappy that
ONclick refused to immediately pay [respondent] on its alleged
invoices, Mr. Fishback threatened to sue [appellant] personally,
without any factual basis for the claim whatsoever.” “Mr
Fishback . . . also threatened to file a complaint with the State
Bar against [appellant].” “The parties then engaged in
settlement negotiations. Those negotiations failed. . . . In
engaging in the [employment] contract negotiations and the
5
settlement discussion, [appellant] was exercising his
constitutionally protected rights.”3
Trial Court’s Ruling
In a minute order the trial court ruled: “The motion is
denied. This is a breach of contract action based on the
agreement [between respondent and ONclick]. [Appellant] is
clearly annoyed at being sued, but his remedy is a demurrer
and/or a motion for summary judgment. . . . Based on what was
pleaded, this [SLAPP motion] should not have been filed. There
may have been actionable words exchanged between counsel, but
none of that has been pleaded. What is at issue is what is in the
complaint, and that is nothing more than a breach of contract
along with some related causes of action. Sanctions in the
amount of $3,300 are awarded in favor of [respondent] . . . .”
The Anti-SLAPP Statute
“A SLAPP suit . . . seeks to chill or punish a party’s exercise
of constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The
Legislature enacted Code of Civil Procedure section 425.16—
known as the anti-SLAPP statute—to provide a procedural
remedy to dispose of lawsuits that are brought to chill the valid
exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1055-1056.)
“A court evaluates an anti-SLAPP motion in two steps. . . .
[¶] . . . The defendant’s first-step burden is to identify the activity
each challenged claim rests on and demonstrate that that activity
is protected by the anti-SLAPP statute.” (Wilson v. Cable News
3 As we explain below, these allegations are at variance
with the complaint. They have nothing to do with the fifth and
sixth causes of action.
6
Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) “A defendant
satisfies the first step of the analysis by demonstrating that the
‘conduct by which plaintiff claims to have been injured falls
within one of the four categories described in subdivision (e)
[of section 425.16]’ [citation], and that the plaintiff's claims in
fact arise from that conduct [citation]. The four categories in
subdivision (e) describe conduct ‘“in furtherance of a person’s
right of petition or free speech under the United States or
California Constitution in connection with a public issue.”’ (§
425.16, subd. (e).)” (Rand Resources, LLC v. City of Carson
(2019) 6 Cal.5th 610, 619-620.) “At this stage, the question is
only whether a defendant has made out a prima facie case that
activity underlying a plaintiff's claims is statutorily
protected . . . .” (Wilson, supra, at p. 888.)
“‘If the defendant carries its [first-step] burden, the
plaintiff must then demonstrate its claims have at least “minimal
merit.”’ [Citation.] If the plaintiff fails to meet that burden,
the court will strike the claim. . . . [¶] Because the [trial court]
determined [appellant] had failed to carry its initial burden, we
are here concerned only with the first step of the analysis.”
(Wilson, supra, 7 Cal.5th at p. 884.)
Standard of Review
“A ruling on a section 425.16 motion is reviewed de novo.
[Citation.] We review the record independently to determine
whether the asserted cause[s] of action arise[] from activity
protected under the statute . . . .” (Stewart v. Rolling Stone LLC
(2010) 181 Cal.App.4th 664, 675.) “‘We consider “the pleadings,
and supporting and opposing affidavits . . . upon which the
liability or defense is based.” . . .’” (Flatley v. Mauro (2006) 39
Cal.4th 299, 326.)
7
Appellant’s Theory on the First Step of
the Anti-SLAPP Statute
Appellant argues: Respondent’s fifth cause of action for
intentional misrepresentation and sixth cause of action for
concealment “addressed [his] freedom of speech in representing
his client, ONclick, regarding a potential contract with
[respondent’s] owner [Jennifer McCoy], and thereafter in
engaging in settlement discussions. As such, these allegations
invaded [his] ability to advise his client and attacked his efforts
at settlement, which are all protected speech.” “The Motion [to
strike] . . . addressed ‘speech’ in the context of negotiations
regarding a[n] [employment] contract, and then a settlement, all
under the threat of litigation by [respondent’s] counsel [Stephen
Fishback].” “Given the factual scenario, . . . [appellant] has
satisfied the first [step] required for an Anti-SLAPP motion, to
wit: the activity is a protected activity under the anti-SLAPP
statute.” “It is unassailable that ‘[s]ettlement discussions made
in connection with or in anticipation of litigation are protected
activities under the anti-SLAPP statute. . . .’” Although such
settlement discussions constitute protected activity, the fifth and
sixth causes of action have nothing to do with settlement
discussions. Nor do they arise out of protected free speech.
Protected Activity – Free Speech
Section 425.16, subdivision (b) provides, “(1) A cause of
action against a person arising from any act of that person in
furtherance of the person's right of . . . free speech under the
United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike . . . .” Section 425.16, subdivision (e) provides, “‘[A]ct in
furtherance of a person’s right of . . . free speech . . . in connection
8
with a public issue’ includes: . . . (3) any written or oral
statement . . . made in a place open to the public or a public
forum in connection with an issue of public interest, or (4) any
other conduct in furtherance of the exercise of the constitutional
right of . . . free speech in connection with a public issue or an
issue of public interest.” “[B]oth the third and fourth categories
of conduct that fall within section 425.16[, subdivision (e)] are
subject to the limitation that the conduct must be in connection
with an issue of public interest. The Legislature intended this
requirement to have a limiting effect on the types of conduct that
come within the third and fourth categories of the statute.”
(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132
(Weinberg).)
Section 425.16 “does not provide a definition for ‘an issue of
public interest,’ and it is doubtful an all-encompassing definition
could be provided. However, the statute requires that there be
some attributes of the issue which make it one of public, rather
than merely private, interest.” (Weinberg, supra, 110
Cal.App.4th at p. 1132.) Appellant’s negotiations and settlement
discussions with respondent were “simply part of a private
transaction, unconnected to any ‘public issue’ or ‘issue of public
interest.’ (§ 425.16, subd. (e), clauses (3), (4).) Therefore, . . .
clauses (3) and (4) of section 425.16, subdivision (e) . . . are
unavailing to [him].” (Moore v. Shaw (2004) 116 Cal.App.4th 182,
200 (Moore); see also Workman v. Colichman (2019) 33
Cal.App.5th 1039, 1048 (Workman) [“To be considered an issue of
public interest, the communication must ‘go beyond the parochial
particulars of the given parties’”].)
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Protected Activity – Litigation-Related Activity
Litigation-related activity may be protected under the first
two clauses of section 425.16, subdivision (e). The clauses apply
to “(1) any written or oral statement or writing made before a . . .
judicial proceeding, or . . . (2) any written or oral statement or
writing made in connection with an issue under consideration or
review by a . . . judicial body . . . .” (§ 425.16, subd. (e), clauses (1)
& (2).) Unlike the third and fourth clauses of section 425.16,
subdivision (e), the first two clauses “do not have an ‘issue of
public interest’ limitation. . . . ” (Moore, supra, 116 Cal.App.4th
at p. 196.)
“Numerous cases have held that the SLAPP statute
protects lawyers sued for litigation-related speech and activity.
[Citations.] Put otherwise, legal advice and settlement made in
connection with litigation are within section 425.16, and may
protect defendant attorneys from suits brought by third parties
on any legal theory or cause of action ‘arising from’ those
protected activities.” (Thayer v. Kabateck Brown Kellner LLP
(2012) 207 Cal.App.4th 141, 154.) “The protection of the anti-
SLAPP statute applies ‘even against allegations of fraudulent
promises made during the settlement process.’ [Citation.]”
(Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP
(2017) 18 Cal.App.5th 95, 114.)
As alleged in the fifth cause of action, the injury-producing
conduct was appellant’s intentional misrepresentations that (1)
ONclick was financially healthy, (2) it would be able to pay for
respondent’s services, and (3) it had the means to finance an
employment contract with respondent’s CEO that was “valued in
excess of $1,000,000 annually.” As alleged in the sixth cause of
action, the injury-producing conduct was appellant’s concealment
10
of ONclick’s poor financial condition and inability to pay for
respondent’s services or to finance the proposed employment
contract. The purpose of the misrepresentations and
concealment was to induce respondent to enter into the service
agreement with ONclick and provide its services on credit instead
of requiring payment in advance.
The injury-producing conduct, which both causes of action
characterize as “fraudulent misconduct,” does not qualify as
litigation-related protected activity. Appellant’s
misrepresentations and acts of concealment were not made in
contemplation or anticipation of future litigation. When they
were made, there was no claim or dispute to be litigated or
settled.
Appellant’s litigation-related activity did not commence
until the employment-contract negotiations “broke down” and
ONclick refused respondent’s request that it immediately pay
respondent’s invoices. As appellant stated in his points and
authorities filed in the trial court, “The parties then engaged in
settlement negotiations” that “failed.”
Respondent aptly observes: “[Appellant] ignor[es] . . . that
all the allegations of [the fifth and sixth causes of action] arise
solely out of the defendants’ failure to pay the amount [they]
owed [respondent] for the services provided and the defendants’
misrepresentation and/or concealment of material information
during the negotiation of the services contracts and/or the . . .
employment contract. . . . [T]hose negotiations in no way
involved any attempt at settlement of anything . . . .”
Accordingly, appellant failed to carry his first-step burden
of establishing “a prima facie case that activity underlying
[respondent’s] claims [in the fifth and sixth causes of action] is
11
statutorily protected . . . .” (Wilson, supra, 7 Cal.5th at p. 888.)
The fifth and sixth causes of action focus on appellant’s
unprotected activity before the commencement of protected
settlement discussions on respondent’s breach of contract claim.
Sanctions for Making Frivolous Motion to Strike
“If the court finds that a special motion to strike is frivolous
or is solely intended to cause unnecessary delay, the court shall
award costs and reasonable attorney’s fees to a plaintiff
prevailing on the motion, pursuant to Section 128.5.” (§ 425.16,
subd. (c)(1).) The trial court ruled that appellant’s motion to
strike was frivolous. “Frivolous in this context means that any
reasonable attorney would agree the motion was totally devoid of
merit. [Citation.] An order awarding attorneys’ fees pursuant to
section 128.5, as incorporated in section 425.16, subdivision (c), is
reviewed under the abuse of discretion test. [Citation.] A ruling
amounts to an abuse of discretion when it exceeds the bounds of
reason, and the burden is on the party complaining to establish
that discretion was abused.” (Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 450 (Gerbosi); see also
Estate of Gilkison, supra, 65 Cal.App.4th 1443, 1448-1449
[collecting cases and describing the standard of review].)
Any reasonable attorney would agree that appellant’s
special motion to strike was “totally and completely without
merit.” (§ 128.5, subd. (b)(2).) Appellant has not made, and could
not make, a prima facie showing that his acts underlying the fifth
and sixth causes of action were in furtherance of his
constitutional right of free speech in connection with a public
issue or an issue of public interest. Appellant’s acts related to
matters that were of purely private concern. Appellant should
12
have considered the component words of the SLAPP acronym –
“strategic lawsuit against public participation.” (Italics added.)
Nor could appellant make a prima facie showing that his
allegedly wrongful, injury-producing conduct constituted
litigation-related protected activity. Any reasonable attorney
would know that “‘it is the principal thrust or gravamen of the
plaintiff’s cause of action that determines whether the anti-
SLAPP statute applies . . . .’” (Robles v. Chalilpoyil (2010) 181
Cal.App.4th 566, 575.) In addition, any reasonable attorney
would realize that the principal thrust or gravamen of the fifth
and sixth causes of action was defendants’ allegedly fraudulent
misconduct during the negotiations of the service and
employment contracts. These negotiations preceded the
litigation-related settlement discussions that occurred after
respondent’s attorney had demanded immediate payment of
respondent’s overdue invoices.
“In 2003, concerned about the ‘disturbing abuse’ of the anti-
SLAPP statute, the Legislature enacted section 425.17 to exempt
certain actions from it. (§ 425.17, subd. (a).)” (Simpson Strong-
Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21-22.) Respondent’s
fifth and sixth causes of action are not exempt under section
425.17. But appellant’s special motion to strike these causes of
action is an example of the “disturbing abuse” of the anti-SLAPP
statute. “Whatever defenses [appellant] may have, those
defenses could not be established by way of an anti-SLAPP
motion.” (Gerbosi, supra, 193 Cal.App.4th at p. 450.)
Sanctions for Taking Frivolous Appeal
After the filing of appellant’s reply brief, respondent timely
filed a motion to impose sanctions against appellant pursuant to
section 907, which provides, “When it appears to the reviewing
13
court that the appeal was frivolous or taken solely for delay, it
may add to the costs on appeal such damages as may be just.”
“‘Courts have struggled to apply . . . section 907. [Citation.] On
the one hand, the statute should be used to compensate for a
party's egregious behavior, and to deter abuse of the court system
and the appellate process. [Citations.] On the other hand,
sanctions should not be awarded simply because an appeal is
without merit. Indiscriminate application of section 907 could
deter attorneys from vigorously representing their clients, and
deter parties from pursuing legitimate appeals.’” (Malek Media
Group, LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834.)
Sanctions for taking a frivolous appeal “should be used
most sparingly to deter only the most egregious conduct.” (In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 651 (Flaherty).)
“Further, ‘[a]n appeal, though unsuccessful, should not be
penalized as frivolous if it presents a unique issue which is not
indisputably without merit, or involves facts which are not
amenable to easy analysis in terms of existing law, or makes a
reasoned argument for the extension, modification, or reversal of
existing law. [Citation.]’” (Dodge, Warren & Peters Ins. Services,
Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422 (Dodge).)
The taking of the present appeal falls within “the most
egregious conduct” referred to in Flaherty, supra, 31 Cal.3d at p.
651. The appeal does not involve a unique issue. It involves a
“garden-variety” issue under the anti-SLAPP law. Appellant
does not make “‘a reasoned argument for the extension,
modification, or reversal of existing law. . . .’” (Dodge, supra, 105
Cal.App.4th at p. 1422.) The facts “‘are . . . amenable to easy
analysis in terms of existing law . . . .’” (Ibid.) Appellant needed
only to determine “‘[t]he allegedly wrongful and injury-producing
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conduct . . . that provides the foundation for the claim[s]’” in the
fifth and sixth causes of action. (Hylton v. Frank E. Rogozienski,
Inc. (2009) 177 Cal.App.4th 1264, 1272.) These causes of action
are not complex. They are simple and straightforward. Any
reasonable attorney would have understood that the allegedly
injury-producing conduct involved a matter of private concern
and was not in furtherance of appellant’s constitutional right of
free speech in connection with a public issue or an issue of public
interest. Any reasonable attorney would also have understood
that the allegedly injury-producing conduct was defendants’
fraudulent, unprotected misrepresentations (fifth cause of action)
and concealment (sixth cause of action) that preceded litigation-
related settlement discussions over respondents’ unpaid invoices.
“This case is simply ‘[a]nother appeal in an anti-SLAPP
case. Another appeal by a defendant whose anti-SLAPP motion
failed below. Another appeal [with] no merit, [which] will result
in an inordinate delay of the plaintiff's case and cause [it] to incur
more unnecessary attorney fees.’ [Citation.] Thus, we find an
award of sanctions to be appropriate, and grant [respondent’s]
motion.” (Workman, supra, 33 Cal.App.5th at p. 1064.)
Respondent has submitted declarations showing that its
reasonable appellate attorney fees and costs total $12,798.50.
This amount is a reasonable and appropriate sanction.
“‘Courts, with increasing frequency, have imposed
additional sanctions, payable to the clerk of the court, to
compensate the state for the cost to the taxpayers of processing a
frivolous appeal. [Citation.] The cost of processing an appeal
that results in an opinion has been estimated to be approximately
$ 8,500.’ [Citations.] We find that additional sanctions in the
15
amount of $ 8,500.00 are appropriate.” (Workman, supra, 33
Cal.App.5th at pp. 1064-1065, fn. omitted.)
“‘Sanctions may be ordered against a litigant [citation]
and/or against the lawyer. . . .’ [Citation.] Sanctions are
warranted against a lawyer ‘who, because the appeal was so
totally lacking in merit, had a professional obligation not to
pursue it.’ [Citation.] We find that sanctions are appropriate
against both [appellant] and [his] counsel of record: [Daniel J.
Mulligan of Jenkins Mulligan & Gabriel LLP]. We therefore
sanction appellant and [his] attorneys, jointly and severally, in
the amount of $12,798.50, payable to [respondent], and in the
amount of $ 8,500.00, payable to the clerk of this court. [¶] This
opinion constitutes a written statement of our reasons for
imposing sanctions. [Citations.]” (Workman, supra, 33
Cal.App.5th at p. 1065.)
Disposition
The trial court’s orders denying appellant’s special motion
to strike and imposing sanctions of $3,300 for making a frivolous
motion are affirmed. For taking a frivolous appeal, sanctions are
imposed upon appellant Larry Gabriel as well as his counsel of
record, Daniel J. Mulligan and Jenkins Mulligan & Gabriel LLP,
jointly and severally, in the amount of $12,798.50 to be paid to
respondent, and $8,500.00 to be paid to the clerk of this court.
Upon issuance of the remittitur, the clerk of this court is ordered
to forward a copy of this opinion to the State Bar. (Bus. & Prof.
Code, §§ 6086.7, subd. (a)(3), 6068, subd. (o)(3).) All sanctions
shall be paid no later than 30 days after the date the remittitur is
issued. Respondent shall recover from appellant any additional
costs on appeal to which it is entitled pursuant to rule 8.278(d) of
the California Rules of Court.
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CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
17
Henry Walsh, Judge
Superior Court County of Ventura
______________________________
Jenkins Mulligan & Gabriel and Daniel J. Mulligan, for
Defendant and Appellant.
Keller, Fishback & Jackson and Stephen M. Fishback, Dan
C. Bolton; The Arkin Law Firm and Sharon J. Arkin, for Plaintiff
and Respondent.