Diane AESCHLIMAN and Gary Aeschliman, Plaintiffs and Appellants, v. Herbert A. GIESE, M.D., Defendant and Respondent.
Plaintiffs Diane and Gary Aeschliman appeal from a summary judgment entered in favor of defendant Herbert A. Giese, M.D., in their action for the wrongful death of their daughter, Amie. The judgment was granted on the basis that plaintiffs' action against Dr. Giese was barred by the one-year statute of limitations found in Code of Civil Procedure, section 340.5.1 The underlying issue is whether plaintiffs' employment of the “Doe” substitution procedure authorized by section 474 satisfied the statute of limitations with respect to Dr. Giese. We hold that it did and reverse the judgment.
Plaintiffs filed their complaint for wrongful death, grounded in medical malpractice, on November 30, 1987. Named as defendants were St. Bernardine Medical Center, Inc., San Bernardino Medical Group, Inc., Paul Godfrey, M.D., and Does 1–100. As was set forth more fully in the motion for summary judgment, eight-year-old Amie Aeschliman was admitted to St. Bernardine Hospital on August 30, 1987, suffering from abdominal pain. Defendant Dr. Godfrey performed an appendectomy which resulted in the removal of an infected, but intact appendix. However, Amie's condition deteriorated due to some form of septic shock, and she died on September 3, 1987.
On January 18, 1989, plaintiffs filed an amendment to the complaint which substituted the name of Dr. Giese in place of “Doe Twenty–Six.”
Dr. Giese filed a motion for summary judgment, on the ground that no triable issue of fact existed as to the expiration of the statute of limitations under section 340.5. He contended that he was therefore entitled to judgment as a matter of law. The motion was supported by his declaration, excerpts from plaintiffs' depositions, and other documentary materials. In opposition, plaintiffs filed points and authorities and a declaration of counsel.
Dr. Giese's declaration established that he had been requested to perform a consultation on Amie on September 1, 1987, and thereupon did examine her. He also stated that he had met personally with plaintiffs, and discussed the child's care and condition with them. Plaintiffs themselves had also testified at their depositions that they spoke with Dr. Giese on that date, either before or during a second, exploratory surgery which was performed (apparently also by Dr. Godfrey) in an effort to determine the cause of the sepsis or infection.
Also included in the motion were copies of medical records taken from Amie's chart. Dr. Giese's name appears repeatedly in these records. He is listed as the admitting physician on an authorization for hyperbaric oxygen therapy which was signed by plaintiff Diane Aeschliman on September 3, 1987.2 The discharge summary prepared after Amie's death recites that Dr. Giese had been contacted for an “Infectious Disease consultation” and had examined the patient; it also shows that following the second surgery, Dr. Godfrey “surrendered” medical management of the child to Dr. Giese and Dr. Timothy Degner. A typed report of Dr. Giese's consultation was included, and the records also showed that Dr. Giese made numerous chart notations, prescribed medications, ordered tests, and left directions and instructions for the nursing staff.
In response, plaintiffs submitted only the declaration of their attorney, David Drexler. He stated that plaintiffs had contacted him on September 28, 1987, and that “[n]either Gary nor Diane Aeschliman had any knowledge as to any facts that anyone involved in the care and treatment of their daughter had done anything improper or negligent. Their sole reason for contacting declarant was a basic feeling that something must have been done wrong or their daughter would not have died following a routine appendectomy.” Counsel then obtained Amie's records and consulted with an expert, which led to the belief that a cause of action might exist against Dr. Godfrey. However, “[a]t the time the action was filed plaintiffs and declarant had no information that Dr. Giese had done anything improper or that he had in any way contributed to the death of plaintiffs' decedent.” It was briefly stated that such information was obtained after the employment of experts in December 1988.
At the hearing on March 22, 1990, counsel offered to describe at the sidebar, out of the hearing of defense counsel, the new facts which had allegedly led to the substitution of Dr. Giese. He stated that to specify them openly would undesirably educate defendants concerning plaintiffs' approach to the case. This offer was never taken up.3
Following argument the court granted the motion and judgment was entered in favor of Dr. Giese.4
The Standards Governing Summary Judgments
“The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. [Citation.] Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.]” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) As plaintiffs point out, defendant bore the burden of clearly establishing the defense of the statute of limitations, and unless he did so, they were under no obligation to provide contrary evidence.5 (Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127–128, 81 Cal.Rptr. 444.) Finally, summary judgment may be granted based on inferences reasonably deduced from the evidence, unless they are contradicted by other inferences or evidence. (§ 437c, subd. (c); Granberry v. Islay Investments (1984) 161 Cal.App.3d 382, 392, 207 Cal.Rptr. 652.)
The Statute of Limitations
A new action brought against Dr. Giese on January 18, 1989, would have been untimely.
Under section 340.5, a plaintiff suing for medical negligence must bring suit within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” Once a prospective plaintiff has notice of circumstances which would put a reasonable person on inquiry—that is to say, once the plaintiff has “become alerted to the necessity for investigation and pursuit of her remedies”—the one-year period begins. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897, 218 Cal.Rptr. 313, 705 P.2d 886; Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102, 132 Cal.Rptr. 657, 553 P.2d 1129.) Ignorance of the identity of the wrongdoer does not toll the statute. (Rose v. Fife (1989) 207 Cal.App.3d 760, 768–769, 255 Cal.Rptr. 440.) As our Supreme Court has recently warned, “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go and find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111, 245 Cal.Rptr. 658, 751 P.2d 923.)
Under these standards, plaintiffs concededly suspected that Amie had been the victim of malpractice on the part of one or more health care providers almost immediately after her death, as they consulted an attorney within a month. It was therefore incumbent upon them to investigate promptly the facts surrounding the suspected negligence, in order that they might file suit against the appropriate parties. As Dr. Giese's participation in Amie's treatment was well-known to plaintiffs before November 30, 1987, an action filed against him some 16 months later would have been untimely.6
However, this does not end our inquiry.
The Effect of Section 474
In order to bring an action before the expiration of the applicable statute of limitations, a plaintiff may be compelled to file suit before his investigation has uncovered all information relevant to the ascertainment of the parties responsible for his injuries or other damages. In recognition of this, section 474 permits him to name Doe defendants upon an allegation that he is ignorant of the true names of the defendants so designated. The result is that, as to defendants properly so designated and later personally named by amendment, the amended complaint is deemed filed on the date of the original filing. (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 599, 15 Cal.Rptr. 817, 364 P.2d 681.) This statute is to be applied broadly in pursuit of the policy of this state “favoring liberality in the amendment of pleadings to encourage litigating causes on their merits.” (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 89, 145 Cal.Rptr. 843, 578 P.2d 90; Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1037, 201 Cal.Rptr. 715.) It might well be said that a liberal application of the statute is particularly important in actions governed by a relatively short statute of limitations, such as personal injury actions. (See Olden v. Hatchell, supra, at fn. 9, citing Hogan, California's Unique Doe Defendant Practice: A Fiction Stranger Than Truth (1977) 30 Stan.L.Rev. 51, 92–94.)
As construed, a plaintiff seeking the benefits of section 474 must be ignorant of the name of the defendant—but this condition is satisfied if plaintiff is either ignorant of the defendant's name, or of the facts giving him a cause of action, or was unaware that the facts gave him a cause of action, where a subsequent legal decision establishes his right to sue. (Marasco v. Wadsworth, supra, 21 Cal.3d at p. 88, 145 Cal.Rptr. 843, 578 P.2d 90, citing this court's decision in Barnes v. Wilson (1974) 40 Cal.App.3d 199, 205, 114 Cal.Rptr. 839.)
Plaintiff's ignorance must be genuine. (Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 116, 194 Cal.Rptr. 866.) Where it is apparent that the failure to join a defendant by name in the original complaint is the result of a tactical choice, section 474 will not permit tardy joinder. (Miller v. Thomas (1981) 121 Cal.App.3d 440, 445, 175 Cal.Rptr. 327.) However, it has been regularly held that a plaintiff's right to claim the benefits of section 474 is not dependent upon his diligence in attempting to discover the facts and the identity of the defendants prior to filing suit. (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947, 154 Cal.Rptr. 472; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 376, 228 Cal.Rptr. 878.) As the court pointed out in Munoz, such a requirement would effectively merge sections 340.5 and 474, and make the benefits of the latter section illusory with respect to those plaintiffs whose cause of action accrues on actual or constructive discovery of the relevant facts. Furthermore, if section 474 were subject to a requirement of diligence, plaintiffs might well feel compelled to name as defendants all persons known to have been involved at all in the incident leading to a harmful extension of litigation.7 (91 Cal.App.3d at pp. 947–948, 154 Cal.Rptr. 472.) Thus, the crucial question is that of plaintiff's good faith in failing to name the objecting defendant at the time the original complaint was filed. (See, Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464–1465, 247 Cal.Rptr. 723; Scherer v. Mark (1976) 64 Cal.App.3d 834, 841, 135 Cal.Rptr. 90.)
Nevertheless, several cases hold for defendant in circumstances more or less similar to those involved here, and we discuss the most relevant.8
The leading case denying a plaintiff the tolling benefits of section 474 is Scherer v. Mark, supra, 64 Cal.App.3d 834, 135 Cal.Rptr. 90. In that case, plaintiff attempted to add Dr. Mark in place of a Doe defendant after the statute of limitations had run. She had originally alleged that, while a patient at defendant hospital, she fell while bathing. Liability was predicated on the failure to provide her with a safe place to bathe, or to supervise her, knowing that she was handicapped and under medication. Dr. Mark was plaintiff's treating doctor at the time of her admission to the hospital. In response to his motion for summary judgment, plaintiff apparently submitted only conclusory affidavits similar to that filed by counsel here. The court observed that although plaintiff alleged that she had learned “new facts” suggesting that Dr. Mark had been negligent, she never said what those facts were or otherwise explained her belated decision to join him. The record reflected no basis for the joinder except that plaintiff had changed her mind. (Scherer v. Mark, supra, at p. 843, 135 Cal.Rptr. 90.) Hence, the court found that she had been in full possession of all relevant information at the time the action was filed, and was not, as a matter of law, ignorant either of Dr. Mark's name or his possible liability. Summary judgment in favor of Dr. Mark was therefore affirmed.
In Dover v. Sadowinski, supra, 147 Cal.App.3d 113, 194 Cal.Rptr. 866, the court rejected the apparent attempt by plaintiff “to create a new standard to be applied in the application of section 474 ․ that ․ the plaintiff must be aware of each and every detail concerning that person's involvement.” (At pp. 117–118, 194 Cal.Rptr. 866.) On a finding that plaintiff's claim of ignorance was in fact feigned, the court upheld summary judgment in circumstances even more compelling than those in Scherer. In Dover, the medical records showed that defendant Dr. Sadowinski had been the attending physician throughout the hospitalization of plaintiff's deceased wife. He conducted the admission physical, made the physician orders and progress notes, and signed the discharge summary. It was undisputed that Dr. Sadowinski had personally spoken to plaintiff a number of times during the hospitalization, and told him that he was in charge of the wife's care.
The complaint fixed as the specific negligence defendants' failure to discover that the wife suffered from Halothane toxicity following the use of Halothane as an anesthesia agent. It also alleged that defendants failed to make a referral to a competent specialist. Finally, at the hearing in the trial court, counsel for plaintiff candidly admitted that “We knew he was involved, but we had no idea, Your Honor, how deeply as a negligent individual, he was involved.” (Dover v. Sadowinski, supra at p. 117, 194 Cal.Rptr. 866 [italics in original].)
The court found that this evidence clearly indicated that plaintiff was not ignorant of the facts. The opinion does not state what efforts, if any, plaintiff made to explain the delay in naming Dr. Sadowinski.
Finally, in Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 279 Cal.Rptr. 194, the court rejected an attempt to rely on the protections of section 474 where, before filing suit, plaintiff had actually written a demand letter to defendant, insisting that the latter desist from the allegedly unfair practices which were to form the basis of the lawsuit. The court was unpersuaded by plaintiff's explanation that he relied on the responsive assurances that defendant was not engaging in such practices when he elected not to name that defendant in his original complaint, and concluded that “[defendant's] reply to the demand letter was irrelevant ․ [plaintiff] knew everything he needed to know about [defendant] when he filed his original complaint.” (228 Cal.App.3d at p. 784, 279 Cal.Rptr. 194.)
We agree with the general principle underlying the decisions in these cases—that a party who is aware of all relevant facts at the time of filing the complaint cannot rely on section 474 to permit the revival of a stale claim, to a defendant's probable prejudice. (See Munoz v. Purdy, supra, 91 Cal.App.3d at pp. 946–947, 154 Cal.Rptr. 472.) However—at least within the context of a summary judgment proceeding and the evidence before the trial court—we think these cases are distinguishable. Although plaintiffs countershowing was insignificant, defendant did not conclusively establish as a matter of law, that at the time of the filing of the complaint, plaintiffs had a genuine knowledge of facts demonstrating the existence of a viable cause of action against Dr. Giese for professional negligence.
In both Dover and Scherer, the defendants purportedly identified as “Does” were the doctors having primary responsibility for the care of the plaintiff (or, in Dover, for plaintiff's decedent). Consequently, plaintiffs' assertions of ignorance were inherently incredible. In Scherer, plaintiff asserted that she had been improperly supervised and/or medicated; the appellate court correctly felt that she was aware of Dr. Scherer's responsibility for ordering her medication and for ensuring that hospital personnel took the effects of her medication into account in caring for her. Dover presented an even easier case, especially after counsel conceded that he was at all times aware of Dr. Dover's negligent involvement. Similarly, plaintiff in Optical Surplus, Inc. found it impossible to overcome the effect of his own express, pre-litigation accusations of wrongdoing by defendant.
In the case at bar, plaintiffs were aware that Dr. Giese participated in Amie's treatment. However, this does not establish that, as a matter of law, they were aware of his responsibility for her death.
In Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d 369, 228 Cal.Rptr. 878, this court held section 474 properly invoked against a demurrer based on the statute of limitations.9 There, plaintiffs sued for the failure to provide benefits under an automobile service contract which they had purchased at the time they purchased a new car. A promotional leaflet provided to plaintiffs stated that the service plan was “presented” by defendant H.A.S., and “administered” by a defendant named in the original complaint. We held that although plaintiffs obviously were charged with knowledge that H.A.S. had some relationship to or involvement with the contract, the statement in the leaflet did not require a finding that plaintiffs knew that H.A.S. was involved in the denial of their claim.
This case is analogous to Joslin. Plaintiffs took their daughter to defendant St. Bernardine Hospital for treatment of a suspected attack of appendicitis. An appendectomy was duly performed by Dr. Godfrey, the admitting doctor, and an intact, but infected, appendix was removed. Nevertheless, Amie almost immediately became gravely ill from an infection.
Had plaintiffs attempted to substitute Dr. Godfrey in place of a Doe physician after the statute of limitations expired, we would have no difficulty in finding it factually indisputable that they had actual knowledge of all relevant facts under Scherer and Dover. The information available to them clearly suggested that some negligence had been committed during the surgery by Dr. Godfrey.
However, the evidence shows clearly that Dr. Giese was called in for consultation only, after the child's condition began to deteriorate. Although the efforts of Drs. Giese, Degner, and Godfrey, as a group, were unsuccessful in saving Amie's life, this uncontroverted fact does not lead to the conclusion that there is no triable issue of fact concerning whether the parents were aware that Dr. Giese provided inadequate or negligent care during this period.
Building on the slight evidentiary showing made by plaintiffs, defendant argues that their failure to name him originally was apparently due to discouraging advice from the expert consulted before suit was filed, or at least to counsel's belief that Dr. Giese was not at fault. It is true that, as we discussed above, the statute of limitations in section 340.5 is not tolled simply because plaintiffs are informed by experts that they have no cause of action. The focus is on plaintiffs' personal actual or constructive knowledge of the facts underlying their claim. (Gutierrez v. Mofid, supra, 39 Cal.3d 892, 902, 218 Cal.Rptr. 313, 705 P.2d 886.) But Gutierrez did not arise under section 474 and does not discuss the effect of that statute.
We follow Munoz and its progeny,10 and distinguish the constructive knowledge which is sufficient to commence the running of the statute of limitations under section 340.5 from the actual, genuine knowledge which alone bars a plaintiff from relying on the prophylactic effects of section 474. (Munoz v. Purdy, supra, 91 Cal.App.3d 942, 154 Cal.Rptr. 472; cf. Sanchez v. South Hoover Hospital, supra, 18 Cal.3d 93, 132 Cal.Rptr. 657, 553 P.2d 1129.) As the court observed in Munoz, if that section is to retain any usefulness in actions governed by a “discovery accrual” statute of limitations, it must be applied liberally and a plaintiff barred from its advantages only on a clear showing of actual knowledge.11 The two statutes—sections 340.5 and 474 are not parallel; the former encourages prompt investigation, and the latter mitigates any harshness in the enforcement of a short statute of limitations.
The undisputed facts known to plaintiffs, as established by Dr. Giese, provided constructive knowledge sufficient to place upon plaintiffs the duty to make inquiries and to commence suit within the one-year limit of section 340.5. This they did. However, these facts do not establish as non-triable issues under section 437c that plaintiffs were aware of Dr. Giese's responsibility for their daughter's death. He did not perform the surgery and was not caring for Amie when her condition began to worsen. This is not a case in which plaintiffs deliberately placed their heads in the sand and ignored obvious responsibility.
The evidence produced by Dr. Giese might support a reasonable inference that plaintiffs were aware that his negligent conduct played a role in their daughter's death. However, an equally reasonable inference is that their failure to name him as an original defendant was due to the belief that Amie's death was due solely to malpractice committed in connection with the surgery, in which Dr. Giese was not involved. Section 437c, subdivision (c) prohibits the resolution of these conflicting inferences on a motion for summary judgment. (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185–186, 163 Cal.Rptr. 912.) Accordingly, defendant failed to establish, as a matter of law, plaintiffs' lack of good faith or actual awareness of Dr. Giese's negligence at the time the complaint was filed; consequently, the trial court erred in granting summary judgment.
The judgment is reversed.
1. All further statutory references are to the Code of Civil Procedure.
2. Dr. Giese was not the actual admitting physician under whose authority Amie was admitted to the hospital. The laboratory slips confirm that Dr. Godfrey was the admitting doctor.
3. The court expressed the opinion that it was incumbent upon plaintiffs to explicitly and candidly set forth any new facts in their opposition to the motion. While we do not now decide the issue, we agree that to permit a plaintiff to secretly disclose the purported “new facts” justifying the decision to add a defendant in place of a Doe would place an onerous and unfair burden on the moving party who sought to prove prior knowledge. If defendant does not know what new facts plaintiff relies on, he cannot refute the claim of recent discovery.We do not see how counsel could have expected to keep these “new facts” from Dr. Giese for any length of time. Dr. Giese would have been entitled to learn through discovery the facts supporting plaintiffs' contention of negligence. (§ 2030, subd. (c)(6).) Although we hold, based on the evidence presented to the trial court, that defendants were not entitled to summary judgment because triable issues of fact remain as to whether plaintiffs filed the complaint in good faith and without prior knowledge of facts suggesting Dr. Giese's negligence, and its causation of Amie's death, counsel's refusal to explain the decision to add Dr. Giese (if in fact there was any explanation other than a change of mind) made the trial court's task more difficult.At the hearing, plaintiffs' counsel referred to a request for a continuance under section 437c, subdivision (h) (where facts needed to oppose the motion may exist, but cannot then be presented). No justification for this request was given, and its denial is not pursued. We find it difficult to imagine what additional facts plaintiffs needed to uncover to establish their own state of mind and evaluation of the treatment rendered to Amie by various health care providers.
4. The judgment contained in the record is unsigned and unfiled. Respondent informs us that the judgment was in fact signed and filed on April 4, 1990. We will assume this to be correct and that we have no need to proceed through the fiction of amending the minute order so that it constitutes an appealable judgment. (Beazell v. Schrader (1963) 59 Cal.2d 577, 579–580, 30 Cal.Rptr. 534, 381 P.2d 390.)
5. In effect, plaintiffs did not provide any evidence. Counsel's deliberately vague declaration provided nothing to counter defendant's factual showing, insofar as it was not incompetent. We note that plaintiffs themselves did not provide affidavits or other evidence setting forth their lack of knowledge of Dr. Giese's responsibility, or otherwise attesting to their good faith in not naming him as an original defendant. Counsel was not qualified to make a declaration which went to plaintiffs' state of mind.
6. An undisputed fact, denominated issue 2 by Dr. Giese, is: “Plaintiffs were fully cognizant of Dr. Giese's identity and involvement in the decedent's medical care and treatment prior to the time the original complaint was filed.”
7. Section 1038 makes a plaintiff who sues a public entity without reasonable cause liable for costs and attorneys' fees. Although other classes of defendants are required to show malice before bringing suit for malicious prosecution, we think that public policy favors any rule which would discourage plaintiffs from casting their nets unnecessarily widely in naming defendants.
8. We do not discuss in detail Hazel v. Hewlett, supra, 201 Cal.App.3d 1458, 247 Cal.Rptr. 723, which also involved a situation in which plaintiff was unquestionably aware of the identity of a treating doctor. In that case, the court resolved the issue of good faith ignorance against plaintiff after a court trial. Although the result supports defendant's position, the different standard used in ruling on a motion for summary judgment makes the case of limited applicability. Our holding on this appeal does not preclude defendant from urging the statute of limitations as a defense at trial. We also note that the special defense of the statute of limitations may be bifurcated and tried first under the provisions of section 597.
9. However, some extrinsic evidence was admitted for the court's consideration—a leaflet and some portions of plaintiffs' depositions which contained undisputed matter.Defendant H.A.S. attempted to show that the pleading of actual ignorance was sham. As the motion was presented and decided, the effect was similar to a motion for summary judgment in that H.A.S., to prevail, would have had to conclusively show, as a matter of law, that plaintiffs possessed the requisite knowledge. The decision is therefore relevant to the case before us.
10. In addition to the cases cited above, see Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 264 Cal.Rptr. 156; Grinnell Fire Protection Systems Co. v. American Sav. & Loan Assn. (1986) 183 Cal.App.3d 352, 359, 228 Cal.Rptr. 292; Streicher v. Tommy's Electric Co. (1985) 164 Cal.App.3d 876, 883, 211 Cal.Rptr. 22.
11. A defendant brought in under section 474 may, of course, be prejudiced by the delay in naming him. However, plaintiff is required to discover his true identity, and to complete service, within the time limits applicable to an originally named defendant. (See Code Civ.Proc., § 583.210; Nelson v. A.H. Robins Co. (1983) 149 Cal.App.3d 862, 866–868, 197 Cal.Rptr. 179.) Similarly, the time in which to commence trial runs from the date of the original filing as to a fictitiously named defendant. (Code Civ.Proc., § 583.310; Gray v. Firthe (1987) 194 Cal.App.3d 202, 209, 239 Cal.Rptr. 389.) Thus, a plaintiff incurs great risks by delaying before identifying Does, and they are entitled to the same procedural protections as named defendants.
TIMLIN, Associate Justice.
DABNEY, Acting P.J., and HOLLENHORST, J., concur.