Janette ORELLANA, Plaintiff and Appellant, v. Duvan MEJIA, M.D., Defendant and Respondent.
Plaintiff Janette Orellana appeals from an order amending a judgment in her favor.
STATEMENT OF FACTS
This is a medical malpractice action. Following trial, on March 6, 1987, the jury rendered special verdicts in favor of plaintiff and awarding her $295,000—$45,000 for past pain and suffering and $250,000 for future pain and suffering. Defendant then indicated he would be moving to reduce the amount of damages pursuant to Civil Code section 3333.2 and for periodic payment of future damages pursuant to Code of Civil Procedure section 667.7.1 The trial court requested that the motions be filed in writing and heard at an appropriate time. Later that day, the trial court signed a judgment on special verdict awarding lump-sum damages of $295,000.
On March 19, the parties stipulated to a reduction in damages to $250,000 pursuant to Civil Code section 3333.2. The trial court ordered the reduction on April 10.
On April 30, the motion for periodic payments was heard. The trial court amended the judgment to provide $95,000—$45,000 in past damages and $50,000 in future damages—was immediately due and payable; the remaining $155,000 was to be made in periodic payments of $6,200 each for the next 25 years. The court also ordered ten percent interest to be paid on the full $250,000 from January 9, 1987—apparently the time an offer was made—to the present date, totalling $7,707.84, and ten percent interest to be paid on the $95,000 until that payment was made.
Plaintiff contends the trial court lacked jurisdiction to set aside the lump-sum judgment and enter a different judgment ordering periodic payments.
Plaintiff further contends, if periodic payments are allowed, she is entitled to interest on the present cash value of the lump sum award and future payments.
Finally, plaintiff asserts attorney's fees and costs are not subject to periodic payments and should have been deducted from her award prior to the determination of the periodic payment schedule.
Plaintiff contends the trial court lacked jurisdiction to set aside the lump-sum judgment and enter a different judgment ordering periodic payments. We disagree.
Plaintiff relies on Craven v. Crout (1985) 163 Cal.App.3d 779, 209 Cal.Rptr. 649 in support of her contention. Craven, like the instant case, involved a lump-sum judgment awarded in a medical malpractice case. Two months after the judgment was entered, defendant requested the trial court to order future damages to be paid by periodic payments pursuant to Code of Civil Procedure section 667.7. Following a hearing, the trial court ordered periodic payments of a portion of the award. (163 Cal.App.3d at p. 781, 209 Cal.Rptr. 649.)
On appeal, the court observed as a general rule, once a judgment is entered the trial court loses its unrestricted power to change it. (Id., at p. 782, 209 Cal.Rptr. 649.) It retains jurisdiction to correct clerical errors in the judgment entered, but it may not amend the judgment in a way which substantially modifies it or materially alters the rights of the parties under the guise of correcting a clerical error. (Ibid.) Under certain statutory conditions, a trial court may change an entered judgment (Code Civ.Proc., § 655 et seq. [granting motion for new trial]; Code Civ. Proc., § 629 [granting motion for judgment notwithstanding verdict]; Code Civ.Proc., §§ 663, 663a [vacating judgment and entering different judgment]; Code Civ. Proc., § 473 [granting relief from judgment] ), but none of the conditions was present in the case before the court. (163 Cal.App.3d at pp. 782–783, 209 Cal.Rptr. 649.) Further, nothing in section 667.7 authorizes a trial court to set aside a judgment awarding lump-sum damages and enter a different judgment awarding periodic payments. (Id., at p. 783, 209 Cal.Rptr. 649.) Thus, the judgment awarding periodic payments was void. (Id., at pp. 784–785, 209 Cal.Rptr. 649.)
The court noted inasmuch as a trial court has no jurisdiction to render a new judgment ordering periodic payments once a lump-sum judgment has been entered, a request for periodic payments must be made before any judgment is entered. (Id., at p. 784, 209 Cal.Rptr. 649.) Additionally, when trial is by jury, the clerk must enter judgment in conformity with the verdict within 24 hours of its rendition unless the court orders the case reserved for argument or further consideration, or it grants a stay of the proceedings. (Ibid.; see Code Civ. Proc., § 664.) So the proceedings should be stayed if periodic payments are requested, until a periodic payment schedule has been formulated. (163 Cal.App.3d at p. 784, 209 Cal.Rptr. 649.)
Plaintiff here argues, inasmuch as defendant failed to move to stay entry of judgment until a periodic payment schedule was formulated, and allowed a lump sum judgment to be entered, that judgment is final and the subsequent order is void. Defendant distinguishes Craven, where the request for periodic payments was made after entry of judgment, from the instant case, where the request was made prior to entry of judgment, and he asserts any error in the judgment entered was clerical and could be corrected nunc pro tunc by the trial court.
A court has inherent power to correct clerical errors in its records. (In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729.) Clerical errors must be distinguished from judicial errors, which cannot be corrected by amendment. (Ibid.)
Numerous definitions have been proposed to distinguish clerical from judicial error. In re Candelario, supra, defines judicial error as error in rendering the judgment and clerical error as error in recording the judgment rendered, adding that judicial error results from the deliberate exercise of judicial discretion. (Ibid.) Clerical error also has been described as arising where a judgment has been made or entered inadvertently or by mistake, as opposed to judicial error where the judgment is made or entered advertently. (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 67, p. 501; see Morgan v. State Bd. of Equalization (1949) 89 Cal.App.2d 674, 677, 201 P.2d 859.) Such inadvertence or mistake causes the court to sign a judgment different from that which was intended. (7 Witkin, op. cit. supra, § 70, p. 505.) Bowden v. Green (1982) 128 Cal.App.3d 65, 180 Cal.Rptr. 90 states an error is judicial where the trial court “ ‘knowingly rendered a judgment without realizing that it was bad in law,’ ” while it is clerical where the trial court “ ‘inadvertently or by mistake signed ․ a judgment or order which he did not intend to constitute his decision.’ ” (At p. 71, quoting from 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 75, p. 3235.)
Before correction of an error will be allowed, there must be evidence in the record to show the error was clerical. (Morgan v. State Bd. of Equalization, supra, 89 Cal.App.2d at p. 682, 201 P.2d 859.) In the case of conflicting evidence, the appellate court will accept the trial court's recital that the error was clerical. (Ibid.; see 7 Witkin, op. cit. supra, § 78, p. 512.)
The record here shows, after the jury verdict was rendered, the defense attorney asked, “Your Honor, there will be motions pursuant to Civil Code [section] 3333.2 and Code of Civil Procedure [section] 667.7. [¶] May we be heard now, or shall we return?” The trial court responded, “Well, you're going to have to, I think, return, file your motions in writing․ [Y]ou can file your motions, and we'll set them for hearing at the appropriate time.” Later that day, March 6, 1987, the trial court signed a judgment on special verdict awarding a lump-sum judgment of $295,000.
On April 10, the trial court granted defendant's motion to reduce the damages to $250,000 pursuant to Civil Code section 3333.2. On April 30, the court ordered the judgment amended to provide for periodic payments.
At the April 30 hearing, plaintiff's counsel raised the issue of the court's jurisdiction to amend the judgment and defendant's failure to request a stay of the proceedings. The court pointed out the request for periodic payments was made orally and it was too complicated to be dealt with on an oral basis; when the request was made, the time was already 12:30 and the court did not want to impose on the staff any further. The court indicated: “Now, the judgment, of course, had to be entered pursuant to [Code of Civil Procedure section] 664 by the clerk within 24 hours, and so it was entered. I think it was at all times understood by all that the judgment was subject to modification pursuant to [Civil Code section] 3333.2 and [Code of Civil Procedure section] 667.7 based upon the issues having been raised and discussed and the motion having been made.
“I think that plaintiff in fact, even after the judgment was entered, entered into a stipulation to decrease [the judgment] to $250,000, and the Court ordered the modification both pursuant to the stipulation and, I think, the duty that the Court has in view of the statute. I think the statute is mandatory. It would have been purely a technicality to insist on a specific order to stay in this context.
“I think there has been no prejudice. As I say, it was clear to everyone that these issues had been raised and were going to be determined, and just having made an additional motion to stay I don't think would have made any difference in this case.
“So I think the judgment as it now stands is in violation of [Code of Civil Procedure section] 667.7 which mandates award of periodic payments where it's been asked, and it was asked, so, anyway, I'm going to find jurisdiction.”
On the one hand, it could be said any error in the judgment was judicial, in that the error was in the trial court's rendition of the judgment without reserving jurisdiction or staying the proceedings to allow rendition of a judgment not above the legal maximum of $250,000 and which provided for periodic payments as required by law (Civ. Code, § 3333.2; Code Civ. Proc., § 667.7; see Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 154–155, 211 Cal.Rptr. 368, 695 P.2d 665). (In re Candelario, supra, 3 Cal.3d at p. 705, 91 Cal.Rptr. 497, 477 P.2d 729.) On the other hand, it is clear the trial court did not intend to render a final—and illegal—lump-sum judgment in the amount of $295,000; it intended to later consider and rule upon the motions to reduce the amount of damages and to order periodic payments. It is reasonably inferable it was a mistake on the part of the trial court to render the initial judgment without explicitly reserving jurisdiction to amend it to conform to the legal requirements. Comments by the trial court suggest the only reason judgment was rendered rather than the proceedings stayed was to allow plaintiff to collect postjudgment interest on the entire judgment until the periodic payment schedule was formulated, which the court intended to do after written motion and a hearing.
In Estate of Doane (1964) 62 Cal.2d 68, 41 Cal.Rptr. 165, 396 P.2d 581, the decedent's will provided a specified beneficiary was to be paid out of a trust fund at the end of 10 years unless he was childless. A petition for preliminary distribution omitted this condition, and the order for preliminary distribution signed by the judge followed the provisions of the petition, contrary to the terms of the will. The other beneficiaries moved for an order to correct the judge's decree nunc pro tunc. At the hearing on the motion, the judge who signed the order indicated he had no intention of decreeing anything contrary to the terms of the will, and the decree did not express the decision he intended to make. The trial court found the error was probably inadvertent, but it was judicial and could not be corrected. (At pp. 69–70, 41 Cal.Rptr. 165, 396 P.2d 581.)
The appellate court concluded the error was clerical and could be corrected. (Id., at pp. 71–72, 41 Cal.Rptr. 165, 396 P.2d 581.) Clerical error is one which is inadvertent or improvident and not actually the deliberate result of an exercise of judicial reasoning and determination. (d., at p. 71, 41 Cal.Rptr. 165, 396 P.2d 581.) In determining whether the error is clerical or judicial, great weight should be given to the judge's declaration as to his intention in signing the order or judgment. (bid.) Since the judge's intent was to conform the decree to the terms of the will, the error in not doing so was clerical—it could not reasonably be attributed to the exercise of judicial consideration or discretion. (Id., at pp. 71–72, 41 Cal.Rptr. 165, 396 P.2d 581.)
Estate of Doane supports a conclusion in the instant case the error in the judgment was clerical—the failure to explicitly reserve jurisdiction to amend the judgment was inadvertent or improvident, but it was not the result of an exercise of judicial consideration or discretion. The trial court's intent was to later amend the judgment to conform it to the requirements of the law. Hence, we conclude the error was clerical, and the trial court retained jurisdiction to later reduce the total judgment and order periodic payments of future damages.2
Plaintiff further contends, if periodic payments are allowed, she is entitled to interest on the present cash value of the lump-sum award and future payments. We agree in part.
In her opening brief, plaintiff asserts the jury was instructed, pursuant to BAJI No. 14.70, to reduce her future damages to their present value; this prevents a windfall to plaintiff, who can invest the sums awarded to her and thereby recover an amount in excess of her actual losses. By ordering periodic payments, the trial court precluded her from investing the sums awarded and earning interest thereon prior to the time the funds are needed to cover her losses. This resulted in a second discount of her award—the first being reduction to present value—reducing it to an amount less than that the jury intended to give her to compensate her for losses. Therefore, she argues, she should have been awarded interest on the periodic payments to fully compensate her.
Defendant points out, and plaintiff acknowledges in her reply brief, the jury was not instructed pursuant to BAJI No. 14.70; the instruction was withdrawn by plaintiff. Thus, there was no double discount. The issue really is whether, when a trial court orders periodic payments of a jury's lump-sum award, it is required to award interest on the payments to fully compensate the plaintiff.
Code of Civil Procedure section 667.7 makes no provision for interest to be awarded on periodic payments ordered pursuant to that section. As a rule of statutory construction, the duty of the court “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted․” (Code Civ. Proc., § 1858.) “It is ․ against all settled rules of statutory construction that courts should write into a statute by implication express requirements which the Legislature itself has not seen fit to place in the statute.” (People v. White (1954) 122 Cal.App.2d 551, 554, 265 P.2d 115; see Estate of Tkachuk (1977) 73 Cal.App.3d 14, 18, 139 Cal.Rptr. 55.) Thus, we may say, the Legislature having omitted to provide for interest on an award of periodic payments, we cannot insert such a provision into section 667.7.
Plaintiff argues, however, the Legislature must have intended to fully compensate an injured plaintiff, and “[t]o award [plaintiff] a judgment that decreases in value each year was never intended by the legislature and should not be allowed by this Court.” A statute should be construed according to legislative intent in order to effectuate its purpose. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Part of the Legislature's intent in enacting section 667.7 is to “provide compensation sufficient to meet the needs of an injured plaintiff․” (Code Civ. Proc., § 667.7, subd. (f).) Certainly, if periodic payments of a lump-sum award are ordered, a plaintiff does not receive the full amount the jury found would compensate her due to the future decrease in the value of the money (see Franck v. Polaris E–Z Go Div. of Textron, Inc. (1984) 157 Cal.App.3d 1107, 1117, 204 Cal.Rptr. 321).
Amici curiae on behalf of plaintiff point out plaintiff has a constitutional right to interest on a judgment (Cal. Const., art. XV, § 1; Harland v. State of California (1979) 99 Cal.App.3d 839, 160 Cal.Rptr. 613) and there is no exception provided for periodic payments of the judgment. The right to interest from the time of judgment arises even where there is no present and unqualified right to receive payment at the time judgment is entered. (Bellflower City School Dist. v. Skaggs (1959) 52 Cal.2d 278, 281, 339 P.2d 848 [in eminent domain proceedings, defendant had the right to interest from the time interlocutory judgment was entered, even though within thirty days thereafter plaintiff could abandon the proceedings and avoid the judgment].) Thus, plaintiff is entitled to interest on the unpaid principal balance of her judgment from the date it was rendered.
Defendant and his amici curiae place great reliance on Code of Civil Procedure section 685.020, subdivision (b), which provides: “Unless the judgment otherwise provides, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due.” Inasmuch as a statute must be construed with reference to the entire system of law so that all parts may be harmonized and given effect (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805, 249 P.2d 241; Mendez v. Kurten (1985) 170 Cal.App.3d 481, 485, 215 Cal.Rptr. 924), defendant argues in light of section 685.020, section 667.7 cannot be construed to allow postjudgment interest to accrue on periodic payments before they become due.
However, section 685.020, subdivision (b), applies to judgments “payable in installments.” (Emphasis added.) It does not mention periodic payments ordered pursuant to Code of Civil Procedure section 667.7. Although the two have similar features, they are not the same. For example, certain periodic payments may terminate upon the death of the judgment creditor, while installment payments do not. Thus while, as previously mentioned, the Legislature did not make provision in section 667.7 for an award of interest on periodic payments, neither did it provide interest was not to be awarded until the payments become due by including periodic payments within the scope of section 685.020.
As previously discussed, this court should not write into statutes that which the Legislature has omitted. (Code Civ. Proc., § 1858; People v. White, supra, 122 Cal.App.2d at p. 554, 265 P.2d 115.) Moreover, the statutes may not be interpreted to deprive a plaintiff of her constitutional right to interest on her judgment (cf. People v. Skinner (1985) 39 Cal.3d 765, 769, 217 Cal.Rptr. 685, 704 P.2d 752; Wallace v. Hibner (1985) 171 Cal.App.3d 1042, 1045–1046, 217 Cal.Rptr. 748). Application of section 685.020 to periodic payments would do just that.
Amici curiae on behalf of defendant claim, if interest is awarded on periodic payments, “only a defendant confident of an investment return significantly in excess of 10 percent over the entire time-period of the periodic payments would be willing to seek a periodic payment judgment. This effectively would sound the death knell for the periodic payment statute. Worse yet, it could turn section 667.7 into a weapon to be used by plaintiffs, who, by requesting periodic payments themselves, could freeze in place a 10 percent rate of investment return on the jury's verdict at the defendant's expense.” (Footnote and emphasis omitted.) This would run counter to the Legislature's intent to reduce the cost of medical malpractice litigation (Fein v. Permanente Medical Group, supra, 38 Cal.3d 137, 159, 211 Cal.Rptr. 368, 695 P.2d 665).
However, it must be borne in mind the 10 percent rate of interest is on money which is decreasing over time both in value and in the amount on which interest is payable. Moreover, plaintiffs requesting periodic payments may take the risk they will not live long enough to collect their entire judgment. Likewise, defendants requesting periodic payments may gamble on that possibility. Thus, awarding interest on periodic payments need not discourage defendants from requesting them or encourage plaintiffs to do so.
As the foregoing discussion indicates, both sides raise valid points in support of their positions. However, in view of the facts plaintiff has a constitutional right to interest on the judgment and without interest the value of the judgment payable in periodic payments decreases every year, resulting in a total payment less than that which the jury found would compensate plaintiff, we must conclude plaintiff is entitled to interest on the periodic payments running from the date of judgment. Thus, the trial court erred in failing to include such interest in its order.3
Finally, plaintiff asserts attorney's fees and costs are not subject to periodic payments and should have been deducted from her award prior to the determination of the periodic payment schedule. The assertion has merit.
Below, the court noted, plaintiff's counsel “asked the Court to consider his fee agreement and costs and order a lump sum payment in an amount of such costs and fees or to exclude those from the periodic payments.” In the trial court's view, “costs and fees are primarily matters between client and attorney. Generally, of course, triers of fact are not even supposed to consider those in awarding damages․ The amount and how [attorney's fees and costs] should be paid should not be considered by the Court in entering into this area. [¶] I think by asking the Court to enter into this area, you are in a conflict situation, and the Court is placed in a position where it has to, in essence, approve the nature and amount of nontaxable costs and attorney's fees, and the Court should not have to decide issues concerning counsel's fees and costs in determining what amount of judgment should be paid in periodic payments or the appropriate amount of such payments․ [¶] Obviously, here you have your agreement. Based upon your agreement, presumably you may collect your entire fee out of the cash amount that your client is going to receive, but that's not something that I think the Court has to be involved in. Whatever your rights are under your agreement is a separate matter, and I should not have to litigate that as a part of this case.”
Code of Civil Procedure section 1021 provides, “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys ․ is left to the agreement, express or implied, of the parties․” Business and Professions Code section 6146, subdivision (a), provided at the time of trial, in a medical malpractice action an attorney's contingency fee for representing a plaintiff could not exceed 40 percent of the first $50,000 recovered, 33–1/3 percent of the next $50,000, 25 percent of the next $100,000 and 10 percent of any recovery over $200,000. It sets limits on the measure of compensation of attorneys in such actions, but it does not prescribe the mode of compensation; this is left to the agreement of the parties. Thus, in entering into a fee agreement, a plaintiff and her attorney could make special provisions for payment in the event periodic payments were awarded pursuant to section 667.7.
As the court below observed, requiring a trial court to take into account an attorney's fee agreement in ordering periodic payments would complicate the court's task. However, the court would have to review and “approve the nature and amount of nontaxable costs and attorney's fees” only in a very general or cursory manner before it could set up a periodic payment schedule. It need not fashion and approve an attorney's fee and cost award, but only order a lump sum payment sufficient to cover the claimed attorney's fees and costs.
Plaintiff argues, inasmuch as the purpose of an award of periodic payments is “to provide compensation sufficient to meet the needs of an injured plaintiff” (Code Civ. Proc., § 667.7, subd. (f)), attorney's fees and costs must be deducted from the judgment before periodic payments are ordered on the balance so that the payments will compensate the plaintiff. Otherwise, no “compensation” would be received until after expenses are satisfied: “Depending upon the payment schedule, it is likely that a plaintiff may not see a dollar of an award for one year, or more, after entry of judgment. Clearly, this is not what the legislature intended.”
What the Legislature intended was that courts utilize periodic payment judgments “to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended.” (Code Civ. Proc., § 667.7, subd. (f).) Payment of attorney's fees and costs for the malpractice litigation resulting in the award to the injured plaintiff are among that plaintiff's needs. And, unless the attorney's fee agreement so provides, that payment ordinarily must be made when the judgment is rendered or a lump sum payment made, not over the years as periodic payments trickle in. Payment of a lump sum sufficient to cover attorney's fees and costs meets the need to pay these when it arises. Such a payment would not result in a windfall to the plaintiff's dependents or heirs in the event of the plaintiff's death, the result sought to be avoided by section 667.7, in that the plaintiff's estate would remain liable for the attorney's fees and costs.
Amici curiae for defendant point out, in any event, the trial court here did, in fact, award a sufficient lump-sum payment to cover plaintiff's attorney's fees and costs. The total recovery—and amici assume it includes prejudgment interest and postjudgment interest until the date periodic payments were awarded—is $250,000 plus $7,707.84 interest. Forty percent of the first $50,000 is $20,000. Thirty-three and one-third percent of the next $50,000 is $16,666.67. Twenty-five percent of the next $100,000 is $25,000. Ten percent of the next $57,707.84 is $5,770.78. The total fees would be $67,437.45. Adding approximately $5,603 in costs not allowed by the trial court, the total comes to $73,040.45. Plaintiff was awarded a lump-sum of $95,000 plus pre- and postjudgment interest, clearly enough to pay her attorney's fees and costs with funds left over.
The judgment is reversed insofar as it fails to include an award of interest on the amount of damages awarded as periodic payments. In all other respects it is affirmed. Plaintiff to recover costs on appeal.
1. Civil Code section 3333.2 and Code of Civil Procedure section 667.7 were enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA) (Stats. 1975, Second Ex. Sess. 1975–1976, chs. 1, 2, pp. 3949–4007). Section 3333.2 provides in pertinent part: “In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage [but] the amount of damages for noneconomic losses [shall not] exceed two hundred fifty thousand dollars ($250,000).” (Subds. (a), (b).) Section 667.7 provides in pertinent part: “In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages.” (Subd. (a).)
2. Amici curiae on behalf of plaintiff additionally assert the trial court's action was improper, in that the jury, not the trial court, must decide the duration of periodic payments for future damages, otherwise a plaintiff is denied the constitutional right to a jury trial on that question. However, this issue was not raised by plaintiff, and it may not be considered if raised for the first time by amici curiae. (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 511, 146 Cal.Rptr. 614, 579 P.2d 505; cf. Younger v. State of California (1982) 137 Cal.App.3d 806, 813, 187 Cal.Rptr. 310;)
3. Amici curiae on behalf of plaintiff also contend a different method of calculating periodic payments, based upon the amount of the award prior to its reduction to $250,000, is required to fully compensate plaintiff for her injuries as they occur. Inasmuch as plaintiff herself makes no such contention, it may not be considered. (Cf. Younger v. State of California, supra, 137 Cal.App.3d at p. 813, 187 Cal.Rptr. 310.)
SPENCER, Presiding Justice.
HANSON and DEVICH, JJ., concur.