KAIMAN v. MYERS (1987)

In an action for malicious prosecution, a jury returned its verdict in favor of plaintiff and against both defendants awarding $80,000 in general damages and $20,000 in punitive damages.   Defendants appeal alleging, inter alia, that the trial court erred in allowing the jury to decide whether or not the defendants acted with probable cause in filing an action for medical malpractice.   Appellants claim that, “[t]he trier of fact must resolve any conflict in the evidentiary underpinning of the facts of probable cause.   Once that conflict has been resolved, the question of whether the facts as they are found to exist constitute probable cause for bringing the former action is a question of law to be resolved by the judge.”  (Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675, 682, 120 Cal.Rptr. 291, cited in Williams v. Coombs (1986) 179 Cal.App.3d 626, 635, 224 Cal.Rptr. 865.)   We agree with appellants.   However, since we find that based on the evidence before the trial judge, there was not probable cause as a matter of law, we examine whether or not the court's instruction which stated that malice may be inferred by a showing of lack of probable cause constituted error.   We hold that the court's instructions to the jury on probable cause and malice converted a malicious prosecution action into an action for negligence.   Since plaintiff could not recover for defendants' negligence (Norton v. Hines (1975) 49 Cal.App.3d 917, 923, 123 Cal.Rptr. 237) and since the instructions resulted in a verdict based on a theory requiring a “different and less demanding standard of proof ․” (ibid.), we reverse.

INTRODUCTION

Plaintiff is a medical doctor.   This case arises from an earlier action for medical malpractice filed in 1974 by William Ritner as counsel for Marion Myers.   In the 1974 complaint Myers alleged that, on May 29, 1973, she sought out Doctor Kaiman on a friend's advice because she had been feeling ill, was nauseated, had diarrhea and felt weak.   She had been under the care of another doctor for heart problems.   She returned the following day for additional diagnostic testing.   The next day she became faint and again sought Doctor Kaiman's assistance.   She hospitalized Myers from May 31 to June 6, 1973, for further examination and testing.   During this hospitalization the plaintiff diagnosed and treated her as possibly diabetic or as having gallbladder problems.   She was again examined on June 8 at plaintiff's office and scheduled an appointment for June 15.   She did not keep that appointment nor did she again see Doctor Kaiman.

Myers testified that, during her hospitalization, she felt poorer than when first admitted.   She grew concerned over the medication prescribed for her by Doctor Kaiman and, based on a conversation with a staff nurse, requested a consultation with another physician.   She testified that Doctor Kaiman became upset upon learning of the request, refused the consultation, discharged Myers both from the hospital and as a patient and resigned from the hospital.   Nonetheless, Myers again saw Doctor Kaiman on June 8 and was given a “kit” to aid her in dealing with her diabetes.   Although an appointment was scheduled for the following week, Myers did not again see Doctor Kaiman.   Myers believed that Doctor Kaiman had misdiagnosed her problems.   She next saw a Doctor Carroll who immediately took her off the medication prescribed by Doctor Kaiman.   Doctor Carroll treated her for a thyroid condition.

At least six months after her discharge from the hospital and no later than May 20, 1974, Myers consulted with defendant Ritner.   The ensuing malpractice action against Doctor Kaiman was filed by Ritner on May 21, 1974.   The complaint was served on Doctor Kaiman around Christmas 1975.   At no time prior to filing did the defendants seek or obtain either Doctor Kaiman's records of Myers' treatment or those of the hospital.

Beginning in late 1975 and episodically through 1976, plaintiff, her counsel and investigators sought authorizations to obtain Myers' medical records.   Although blank authorizations for the release of these records were furnished to Ritner, none were ever returned.   On October 15, 1976, the deposition of the medical records custodian was taken by Doctor Kaiman's attorney.   As a result of this deposition, all sides received copies of the records.   Shortly thereafter Myers substituted herself in as counsel in propria persona and, on October 29, 1976, she filed a dismissal with prejudice.

This recitation of the underlying case sets out all of the discovery and essentially all the information disclosed by the evidence relative to Ritner's knowledge of the case.   Although Ritner testified at trial that he felt there was probable cause to initiate the lawsuit based on what he had heard at trial, he repeatedly testified that he had little, if any, recollection of the events of 1974.

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MALICIOUS PROSECUTION

Doctor Kaiman's complaint was principally for malicious prosecution.⁴  The elements of a cause of action for malicious prosecution in California are well defined:  “To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor ․;  (2) was brought without probable cause ․;   and (3) was initiated with malice․”  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608;  Tool Research & Engineering Corp. v. Henigson, supra, 46 Cal.App.3d 675, 682, 120 Cal.Rptr. 291;  Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 183–184, 156 Cal.Rptr. 745;  Williams v. Coombs, supra, 179 Cal.App.3d 626, 632, 224 Cal.Rptr. 865.)

A. Favorable Termination

 Appellants urge that Myers' dismissal of the underlying case is, in and of itself, not sufficient evidence to establish a favorable termination.   They point to Myers' assertion that she dismissed her case, because, at the time of the dismissal, she was feeling better, her monetary loss appeared small and, emotionally, she wanted to end the case.

In commenting on the sufficiency of evidence to establish a favorable termination, the Supreme Court in Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335, stated, “[i]t is not enough, however, merely to show that the proceeding was dismissed.   The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person.  ․ The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits.   If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement.   If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.”

A defense verdict or a dismissal on the merits equates with a favorable termination and thus establishes the first element of a malicious prosecution case.   Similarly, a favorable termination may be established by a dismissal for failure to bring the cause to trial within two years of its filing.  (Former Code Civ.Proc., § 583, subd. (a), now Code Civ.Proc., § 583.420;  Minasian v. Sapse (1978) 80 Cal.App.3d 823, 827, 145 Cal.Rptr. 829.)   A voluntary dismissal of a civil action or proceeding by plaintiff is not ordinarily considered a dismissal on “technical grounds.”  “Such a voluntary dismissal, though expressly made ‘without prejudice,’ is a favorable termination which will support an action for malicious prosecution.  [Citations.]”  (MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 289, 7 Cal.Rptr. 707;  see Minasian v. Sapse, supra, 80 Cal.App.3d at p. 827, 145 Cal.Rptr. 829.)

In Weaver v. Superior Court, supra, 95 Cal.App.3d 166, 156 Cal.Rptr. 745, plaintiff (the defendant in the underlying claim) had been sued for medical malpractice.   The defendant attorney had met with defendant patient who alleged she had been maltreated.   A complaint alleging the malpractice was filed.   Thereafter, medical records were obtained and a further conference held between the attorney and the patient.   After this conference they decided that it was not economically feasible to proceed with the action since only $691.95 was involved.   There, as here, the defendant patient was substituted in as counsel in propria persona;  immediately thereafter a dismissal was filed.   This showing was held to be sufficient to support a finding of favorable termination.  (Id., at p. 184, 145 Cal.Rptr. 829.)  Weaver notes, however, that where the evidence conflicts concerning the real motive for the voluntary dismissal, the question of favorable termination is to be resolved by the jury.  (See also Minasian v. Sapse, supra, 80 Cal.App.3d 823, 828, 145 Cal.Rptr. 829.)   In the instant action, the life of the underlying case and the manner in which it was terminated suggest reasons for the dismissal of the malpractice action other than the claimed benevolence of Mrs. Myers.

The case against Doctor Kaiman was referred to defense counsel who undertook to discover the Myers medical records by informally obtaining authorizations for the release of the records of Myers and her counsel, Ritner.   The authorizations were never signed.   Doctor Kaiman's counsel took the deposition of the custodian of records in order to obtain the documents.   Shortly thereafter Ritner substituted out of the case and Myers became her own counsel.   At the same time Myers filed the substitution, she filed her request for dismissal.   At the very least, this conduct raised an inference suggesting that the deposition and the documents it yielded demonstrated a lack of merit in plaintiff's claim sufficient to establish factual innocence and sufficient to send the question of favorable termination to the jury.  “Where the evidence is in conflict, the appellate court will not disturb the verdict of the jury or the findings of the trial court.   The presumption being in favor of the judgment ․, the court must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.”  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 278, p. 289, and cases cited therein at pp. 289–290.)

B. Probable Cause

 At the close of plaintiff's case, both defendants moved for a judgment of nonsuit (Code Civ.Proc., § 581c).   Although the motion of each defendant concerned the elements of a malicious prosecution action, the focus was on the presence or absence of probable cause.   Appellants claim they urged the trial court to rule, as a matter of law, that the plaintiff had failed to demonstrate that either or both defendants lacked probable cause.   On appeal appellants contend that the question of probable cause is an issue of law and, therefore, the trial court erred when it sent that issue to the jury.   We are satisfied that at no time did defendants press this theory upon the trial court.   The claim was simply that there was no factual dispute, thereby making the issue of probable cause a purely legal one.  (7 Witkin, Cal.Procedure (3d ed. 1985) Trial, § 409, p. 412.)   In Ritner's argument in support of his motion for judgment of nonsuit he relied upon the holding in Weaver that the issue of probable cause is to be submitted to the jury.  (Weaver v. Superior Court, supra, 95 Cal.App.3d 166, 189–190, 156 Cal.Rptr. 745.)   Although we believe Weaver to be incorrectly decided on this point and truly a “nonviable mutation ․” (Williams v. Coombs, supra, 179 Cal.App.3d 626, 635–636, 224 Cal.Rptr. 865) of a line of cases dating back to Ball v. Rawles (1892) 93 Cal. 222, 228–230, 28 P. 937), the parties accepted Weaver as controlling.   This issue having not been asserted in the trial court may not be asserted for the first time on appeal.  (Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 117, 179 Cal.Rptr. 351.)

 Citing Lysick v. Walcom (1968) 258 Cal.App.2d 136, 157–158, 65 Cal.Rptr. 406, appellants nonetheless urge us to reverse for the trial court's error in sending the issue of probable cause to the jury.   They claim that the issue was fundamental to the case and that the court has an affirmative duty to correctly instruct the jury even in the absence of requests from trial counsel and even where counsel for all sides are united in their error.   We decline this invitation for two reasons:  First, except in the most extreme of circumstances, the court in a civil case has no duty to instruct, sua sponte, on any issue.  (Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, 869, 179 Cal.Rptr. 923;  see 1 BAJI (7th ed. 1986) The Trial Judge's Duty to Instruct in Civil Cases, pp. IX–X.)

 Second, and more important, we find, as a matter of law, that based on the facts presented in the trial defendant Ritner, counsel for appellant Myers, did not have probable cause to file the case.   The record is silent concerning what Ritner in fact relied upon in deciding to file the action.   At best, he knew that his client had been treated by Doctor Kaiman over a 10–day period for maladies ranging from gallbladder problems to diabetes, as well as the other matters to which Myers testified.

“For purposes of malicious prosecution, probable cause has historically been defined as a ‘suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.’  [Citations.]⁵ In both civil and criminal prosecutions, it ‘has been further defined to be an honest suspicion or belief on the part of the instigator thereof, founded upon facts sufficiently strong to warrant the average person in believing the charge to be true.’  [Citations, fn. omitted.]   Thus probable cause has both an objective and a subjective element.  (White v. Brinkman (1937) 23 Cal.App.2d 307, 312, 73 P.2d 254.)   As the Restatement observes in the context of the malicious instigation of criminal proceedings, a ‘private prosecutor can not have probable cause for initiating criminal proceedings against another if he does not believe that the accused was guilty of the crime charged against him.   If he does not so believe, it is immaterial that the facts of which he had knowledge or belief were such that reasonable men might have regarded them as proof of the guilt of the accused.   It is only when the prosecutor honestly but mistakenly believes the accused to be guilty that the question whether his belief was based on reasonable grounds becomes material.’  (Rest.2d Torts, § 662, com. c. p. 424.)   That same rule obtains in California for the malicious prosecution of civil proceedings.  ‘The existence of probable cause is, in part, determined by an objective test—it is “ ‘a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.’ ”  ․ But if the initiator knows that his claim is groundless he cannot have an actual or honest belief in its validity, and he may not escape liability for commencing an action based on such a claim merely because a reasonable man might have believed it was meritorious.'  (Bertero v. National General Corp., supra, 13 Cal.3d at p. 55 [118 Cal.Rptr. 184, 529 P.2d 608].)”  (Williams v. Coombs, supra, 179 Cal.App.3d 626, 634–635, 224 Cal.Rptr. 865.)

Williams dealt with a malicious prosecution action brought by a physician against his adversary's counsel wherein the underlying action arose from a claim of medical malpractice.   In reversing the order granting a motion for summary judgment in favor of the defendant attorney on the cause of action for malicious prosecution, the court held that the applicable test for reasonable cause for an attorney is the test set forth in Tool Research & Engineering Corp. v. Henigson, supra, 46 Cal.App.3d at p. 683, 120 Cal.Rptr. 291, which states:  “An attorney has probable cause to represent a client in litigation when, after a reasonable investigation and industrious search of legal authority, he has an honest belief that his client's claim is tenable in the forum in which it is to be tried․   The test is twofold.   The attorney must entertain a subjective belief ․ that the claim merits litigation and that belief must satisfy an objective standard.”  (Cited in Williams v. Coombs, supra, 179 Cal.App.3d at p. 639, 224 Cal.Rptr. 865.)

The court concluded that relying solely upon the allegation of the client is insufficient as a matter of law in a medical malpractice case.   There, as here, the defendant attorney relied solely and exclusively upon his client's statements with no further background investigation.   Indeed, in Williams, the attorney at least consulted legal authority purportedly establishing a standard of negligence per se for a physician's failure to properly segregate a psychiatric patient.   The conduct of counsel in this case falls short even of that found by Williams to be insufficient.  “In an area of law as complicated as medical malpractice, an attorney acts at his peril in accepting his client's uncorroborated version of the medical facts.  [Fn. omitted.]” (Williams v. Coombs, supra, 179 Cal.App.3d at p. 641, 224 Cal.Rptr. 865.)   However, we leave it to the trial court to determine whether or not Ritner has additional evidence which would establish that he had probable cause.⁶

 The same standard does not apply to the non-lawyer defendant who seeks counsel's advice and assistance.   The issue, however, is not resolved by us because there is a factual conflict over what Mrs. Myers knew or believed she knew.   Since retrial is required, we offer some thoughts concerning the handling of the issue of probable cause as it pertains to Mrs. Myers.   Her testimony concerning her treatment by Doctor Kaiman and Doctor Kaiman's testimony concerning the treatment is in conflict.   This factual conflict should be decided by the jury by submitting the facts at issue to the jury for specific findings.   Once the facts are decided by appropriate interrogatories sent to the jury, the judge must determine if the facts amount to probable cause.   If the judge determines that they do not, then the jury shall decide the remaining issues of favorable termination and malice;  if the judge determines they do, the matter is ended.   In appropriate cases, BAJI No. 7.33 ⁷ may be used;  in others, the court may list each fact in issue and ask for the jury's finding as to each such fact.   In any case, the court must use care not to fall into the same trap which ensnared the trial court and to which we now direct our attention.

C. Malice

“The propriety of a cause of action for malicious prosecution against an attorney, unlike a cause of action sounding in negligence, is not based on the legal question of whether a duty of care exists and has been breached.   Rather, a malicious prosecution cause of action is bottomed on the allegation and proof of the following three factors:  (1) the prior civil action against the plaintiff must have terminated in the plaintiff's favor;  (2) a defendant-attorney must have lacked probable cause in representation of his client in the prior action;  and (3) the defendant-attorney must have acted maliciously therein.  [Citation.]   If the plaintiff fails to sustain the burden of proof in demonstrating the existence of any one of these three factors, the plaintiff loses.”  (Weaver v. Superior Court, supra, 95 Cal.App.3d at p. 192, 156 Cal.Rptr. 745.)

It is anomalous that we rely upon language in Weaver to point out the distinction between an action sounding in negligence and one for malicious prosecution because Weaver created the very problem which has blurred that distinction.   Upon the successful conclusion of the underlying action in Weaver, defendant doctor sought redress in a malicious prosecution action brought against those he perceived to be his tormentors.   In the course of discussing why a negligence cause of action would not lie, the Weaver court correctly pointed out that such a claim against counsel would run afoul of the public policy in favor of free access to the courts and the appropriate relationship to be maintained between client and counsel.   Relying upon Norton v. Hines, supra, 49 Cal.App.3d 917, 923, 123 Cal.Rptr. 237, the Weaver court stated, “ ‘․ [t]he attorney must have the same freedom in initiating his client's suit as the client.   If he does not, lawsuits now justifiably commenced will be refused by attorneys, and the client, in most cases, will be denied his day in court․’ ”  (Weaver v. Superior Court, supra, 95 Cal.App.3d at p. 180, 156 Cal.Rptr. 745.)

 We know, therefore, that an action sounding in negligence cannot be maintained against an attorney by his adversary in the previous litigation.   Having so stated, however, the Weaver court proceeds to allow just such a claim.   That court held that the question of probable cause, while one of law, is to be determined by resolving the question of whether or not the attorney acted reasonably.   Since the question of reasonable conduct is one to be determined by the trier of fact, the question must be submitted to the jury.  (Weaver v. Superior Court, supra, 95 Cal.App.3d at pp. 189–190, 156 Cal.Rptr. 745.)   The vice of this logic, however, is that if reasonable conduct is to be determinative of probable cause, then one must question what is left for the judge to decide once the jury has decided that the conduct was or was not reasonable.

The avowed purpose of Weaver was to insure that a distinction existed between the lesser quantum of proof required in a negligence action and the greater quantum of proof required for malicious prosecution.   The result of Weaver was to make them identical.   We explain:

A long line of cases have stated that an absence of probable cause raises an inference of malice.  (Runo v. Williams (1912) 162 Cal. 444, 450, 122 P. 1082;  Singleton v. Singleton (1945) 68 Cal.App.2d 681, 696, 157 P.2d 886;  Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 542, 222 P.2d 136.)   If the jury is so instructed and is also told as it was here that, “[t]he term ‘probable cause’ in law [sic ] of malicious prosecution means a suspicion founded upon circumstances sufficiently strong to warrant a reasonable person in belief [sic ] that the charge is true ․,” the result is to convert the tort of malicious prosecution to one for negligence.   Malice is equated to an absence of probable cause;  the absence of probable cause is equated to unreasonable conduct.   The elements of the cause of action then become (1) a favorable termination of the prior action and (2) a failure to act reasonably.

The Weaver court recognized this dilemma was created when it decided to permit the issue of probable cause to go to the jury.   As a result, and in response to the defendant's petition for rehearing, the author of Weaver wrote a second opinion supplementing his first.   In the latter, he stated that the jury, in deciding the question of malice, could infer malice “from the factual predicate underlying the determination of a lack of probable cause.”  (Weaver v. Superior Court, supra, 95 Cal.App.3d at pp. 192–193, 156 Cal.Rptr. 745.)   We read this to mean that the jury may rely upon the same facts to reach each conclusion but may not rely upon one conclusion (absence of probable cause) to reach the next (presence of malice).

 Although the jury was correctly instructed that malice was an element of plaintiff's cause of action, it was then incorrectly instructed that, “[m]alice may be inferred by any one of the following:  [¶] 1. Showing of lack [sic ] of probable cause;  [¶] 2. Showing of indifference to any relevant facts and circumstances;  [¶] 3. Showing of lack [sic ] of good faith on part [sic ] of the accuser or their counsel;  [¶] 4. Showing of defendants' hostility towards plaintiff.”   Instructing the jury that malice may be inferred from a lack of probable cause immediately after telling it that probable cause meant a suspicion founded upon a reasonable belief that a charge is true, effectively eliminated malice from the jury's consideration.

 This error was prejudicial since, as appellants point out, respondent based her theory on this equation.   In opening statement, the jury was told, “[f]urther, when you are instructed on the word ‘malice,’ it is our position that malice doesn't necessarily mean an evil mind.  [¶] You will see lack of good faith, lack of probable cause, and you will see those elements will be easily established.”

In closing argument, respondent's counsel listed the elements of the cause of action for malicious prosecution on a chart shown to the jury.   He then urged the jury, “[f]ourthly, the Defendants acted with malice.  [¶] Now, if you remember on voir dire being asked each of you to please listen to the judge and the Court when he gives the instruction as to the law because you must follow it.   Not what anyone else says.  [¶] Malice is not ill will intending to hurt someone.   It can be.   Doesn't always have to be.  [¶] A malicious prosecution action is, since you can't get into their head, you have to infer it by other matter and circumstances that occurred.  [¶] On the right you see that malice may be inferred by any one of the following.  [¶] That is not all of the following.   That's any one of those four.  [¶] This case happens to be a case where three, if not all four, are present.   Only needs one.”   One of the four listed items was “lack of probable cause.”

 We are called upon to reverse if the instructional error was prejudicial.  (See Cal. Const., art. VI, § 13.)   Prejudice appears “[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction․”  (Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 359 P.2d 929.)   Whether or not an instruction is prejudicial depends upon the consideration of a number of factors, including the argument of counsel emphasizing or highlighting the erroneous instruction, the instruction's relationship to other instructions and whether other instructions may have tended to remedy the error.  (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946.)   In the instant matter, the theme played repeatedly by plaintiff was that the absence of probable cause equalled malice.   The jury instructions echoed this theme.   In effect, this radically altered the nature of the tort, was prejudicial and requires reversal.

DISPOSITION

The judgment of the trial court is reversed and the cause remanded to the trial court for retrial in conformity with this opinion.   On retrial the issue of the absence of probable cause depends on the facts produced on retrial.   The legal issue is and remains one for the trial judge;  to the extent that there are factual disputes, these are to be resolved by interrogatories submitted to the jury.   Once answered, the court is called upon to resolve the issue as a matter of law.  (Williams v. Coombs, supra, 179 Cal.App.3d at pp. 637–644, 224 Cal.Rptr. 865.)

Each party is to bear his own costs on appeal.

FOOTNOTES

FOOTNOTE.  

FOOTNOTE.   See footnote * ante.

4.   Of the four causes of action initially pleaded, only the cause of action for malicious prosecution survived demurrer or nonsuit.   Plaintiff does not take issue with the propriety of these orders.

5.   This is the definition of probable cause that was given to the jury.

6.   Plaintiff bears the burden of proof on this issue.   However, having held that, as a matter of law, defendant Ritner did not have probable cause (ante, at p. 764), it is at this point incumbent upon him to go forward with the evidence.

7.   BAJI No. 7.33 (7th ed. 1986) provides:“To constitute probable cause for the [prosecution of a criminal action] [initiation or maintenance of a civil proceeding] against the plaintiff in this case, the evidence must establish that:  [¶] If you find from all the evidence that the foregoing facts are true, you must find that there was probable cause for the [prosecution of the criminal action] [initiation or maintenance of the civil proceeding] against plaintiff.  [¶] If you find that such facts are not true, you must find that there was not probable cause for the [prosecution of the criminal action] [initiation or maintenance of the civil proceeding] against plaintiff.”

PERREN, Associate Justice.* FN* Assigned by the chairperson of the Judicial Council.

GILBERT, Acting P.J., and ABBE, J., concur.