Farhoomand v. Caine CA4/1

• Court: California Court of Appeal
• Decided: June 25, 2015
• Docket: D064302
• Status: Unpublished

Opinion

Filed 6/25/15 Farhoomand v. Caine CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KAVEH S. FARHOOMAND, D064302

Plaintiff, Cross-defendant and Respondent, (Super. Ct. No. v. 37-2011-00050839-CU-HR-NC)

JANET JUSTIN CAINE,

Defendant, Cross-complainant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Earl H.

Maas III, Judge. Affirmed in part, reversed in part, and remanded with directions.

Fransen and Molinaro and Nathan W. Fransen for Defendant, Cross-complainant

and Appellant.

Law Offices of Linda J. Alexander and Linda Joyce Alexander, Paul Marion

Grinvalsky; Lotz, Doggett & Rawers and Jeffrey S. Doggett for Plaintiff, Cross-

defendant and Respondent. Defendant, cross-complainant and appellant Janet Justin Caine appeals from a

judgment entered in favor of plaintiff, cross-defendant and respondent Kaveh S.

Farhoomand following a jury trial on Farhoomand's operative complaint and Caine's

operative cross-complaint arising out of a real estate transaction between them, the

surrounding circumstances of which were highly contested at trial. By special verdicts

the jury made numerous factual findings accepting Farhoomand's claims and rejecting

Caine's, resulting in a judgment in Farhoomand's favor in which the trial court found in

part that Farhoomand was the prevailing party and ordered Caine to turn over a deed she

had executed granting the subject property to Farhoomand. Thereafter, the court ordered

Caine to pay cost-of-proof sanctions under Code of Civil Procedure1 section 2033.420,

subdivision (b)(3), and entered an amended judgment awarding those sanctions, costs and

attorney fees, as well as declaring the property's purchase price to be $525,000.

On appeal, Caine contends: (1) the court abused its discretion by excluding under

Evidence Code sections 350 and 352 testimony and evidence that assertedly showed

Farhoomand's cultivation of marijuana at the property; (2) the court lacked jurisdiction to

enter the amended judgment declaring the property's purchase price; and (3) the court

erred by awarding cost-of-proof sanctions after she had filed her notice of appeal and also

abused its discretion by including a substantial attorney fee award in connection with

those sanctions. We agree the trial court lacked jurisdiction to amend the judgment to

include the property's purchase price. We reverse that portion of the judgment and

1 Statutory references are to the Code of Civil Procedure unless otherwise specified. 2 remand the matter with instructions that the court modify it to omit that declaration. In

all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Farhoomand and Caine's Relationship

Farhoomand is a physician in internal medicine with a private practice in

Oceanside, California. Caine and her husband maintained multiple residences in Nevada

and California. In 2007, another physician referred Caine to Farhoomand and

Farhoomand began treating Caine's husband, who was then gravely ill with various

chronic conditions. Given his severe condition and because Caine requested it,

Farhoomand began making house visits to Caine's husband at their Oceanside residence,

and continued to treat him there and in the hospital until he died in March 2008. On two

occasions during this time, Caine stuffed a $1000 check into Farhoomand's pocket and

insisted he take it as a gift or tip, telling him she would be offended if he did not.

Farhoomand and Caine eventually became close friends: Farhoomand took to calling her

"Aunt Janet" as did other friends of Caine's, and Caine referred to Farhoomand as her

"nephew." Eventually Caine asked Farhoomand to become her physician, and he saw her

four times in mid-2008 and early 2009. In late 2008, Farhoomand's marriage was

deteriorating and Caine was still grieving her husband's death. They began having dinner

together and talked increasingly over the phone until they spoke once a day, treating each

other as family. They both expressed love for each other as friends.

In September 2008, Caine offered to lend Farhoomand $50,000 and he executed a

promissory note payable "on demand" by Caine for the monies, which Farhoomand used

3 to pay credit card debt from his marriage. Caine then inserted herself into Farhoomand's

business and affairs, telling him he had helped her husband, he was her "project," and it

was now her place to "straighten out [his] life."2 Thereafter at various times Caine lent

Farhoomand additional sums of money and helped him with his finances as well as the

disposition of Farhoomand's home following his divorce. Farhoomand began to repay

Caine in June 2009.

In the spring of 2009, Caine and her realtor began looking for a house for

Farhoomand to purchase. Caine, herself a licensed real estate agent in California, told

Farhoomand it would be an investment for her and beneficial to him in that they would

consolidate his preexisting debts to her in a mortgage, and give him a better interest rate

than his old house and her a better rate than a bank. Eventually, she located a house on

Juniper Lane (the Juniper property) and closed escrow in July 2009, sending Farhoomand

a card on the day escrow closed reading, " 'Hope your new address . . . [¶] . . . [¶] . . .

Feels more like home every day. Congratulations.' " In it, she handwrote a note telling

Farhoomand to "enjoy your new life" and asking him not to bring physical or mental "

'baggage . . . into your new home.' " Caine's realtor at the time noted that Caine was

buying the house for her "nephew," who the realtor understood was Farhoomand.

2 Farhoomand testified that Caine "told me that she wanted to help me, straighten me out financially after the divorce. She said that she's a business women and she's savvy and that it would be therapeutic for her to make me a project"; that it was "good for her to do" that. Farhoomand testified, "We were good friends, so I trusted her. She said that she was—she had done real estate for many, many years. And she also said that it was good for her. It was therapeutic for her." In deposition testimony admitted at trial, Caine testified that if she could help Farhoomand she would do it, that she was alone and depressed and it was like therapy to her. 4 Caine told Farhoomand she would handle the arrangements and documentation.

She took him to a document center where Caine signed a grant deed conveying the

Juniper property to Farhoomand, and Farhoomand signed a note secured by a deed of

trust, both prepared by broker and notary Doreen Kessinger. Kessinger also prepared and

certified a preliminary change of ownership report, signed by Farhoomand and initialed

by Caine, indicating the transaction was a purchase and that Caine was transferring 100

percent of the interest in the Juniper property to Farhoomand via a $605,000 loan

"[c]arried by seller" secured by a first deed of trust at 5.5 percent interest for a 30-year

term. Caine and Farhoomand told Kessinger that the Juniper property was going to be

Farhoomand's primary residence, and Kessinger understood that Caine was selling the

property to him as the lender.3 Caine approved the note, trust deed, change of ownership

report, and an amortization schedule. Kessinger did not notice any indicia of duress or

undue influence in connection with the transaction, and she went over every line of the

documents with Caine before Caine signed them. Caine took all of the documents, which

were unrecorded, and told Kessinger she would record them later.

3 At trial, Farhoomand's office assistant testified that Caine told her she was buying Farhoomand a house and selling it to him; that she "was going to make him walk away from his old house and get him a new house, a better house, and then he was just going to be making the payments to her, and it was just going to be like a win, win situation." Grant Jacobson, who was a landscaper, testified he was hired by Caine and Farhoomand to be the gardener at the Juniper property. According to Jacobson, Caine told him that she had purchased a house and sold it to Farhoomand, and that the house needed a gardener. Caine made an initial prepayment, then Farhoomand paid Jacobson's bills every month thereafter.

5 The note securing the deed of trust indicates Caine gave Farhoomand a 30-year

loan of $605,000 at a 5.5 percent interest rate. The total loan amount was calculated by

adding the $525,000 purchase price to Farhoomand's existing debts, and included money

Caine spent to purchase furniture for Farhoomand.4 Caine prepared two mortgage

ledgers and made handwritten entries for Farhoomand's monthly payments, which were

usually each in the sum of $5,000 or more. Farhoomand moved into the Juniper property

in October 2009 and Caine lived there while some construction was occurring, but soon

afterwards Farhoomand asked to live in the house by himself. In response to

Farhoomand's request, Caine wrote Farhoomand a note telling him they were "on the

same page" and that it was "foolish" of him to ask, as she had to return to her own

affairs.5 Caine moved out of the Juniper property within a couple of days. Farhoomand

paid the utilities, property taxes, home warranty and homeowner's insurance on the

Juniper property until 2012, when Caine paid the property taxes and insurance "out from

under" him.

After November 2010, Caine and Farhoomand had a falling out and Caine stopped

accepting Farhoomand's checks. Farhoomand terminated his physician/patient

4 In discovery responses read to the jury, Caine admitted the principal balance of $605,000 was "based on the fair market value of the Juniper property, the furnishings in the Juniper property, and the outstanding balance of Dr. Farhoomand's loans he received from responding party."

5 Caine read her note into the record. It stated: "Dear one, either you read my mind or you overhear my phone calls, as we are, once again, on the same page. How foolish of you to ask. I really must get back to my own affairs, though I will always be on tap for you, as you know. We'll always be closely connected, no matter what distance is between us. . . . Love you, Janet." 6 relationship with Caine. In December 2010, Caine served him with an eviction notice

and claimed the Juniper property was her house, though he attempted to make payments

in December and January. Feeling he had been "duped," Farhoomand eventually

obtained a court order permitting him to deposit payments into an interest-bearing

account. He also applied for and obtained a restraining order against Caine.

The Lawsuits

In January 2011, Farhoomand filed suit against Caine for, inter alia, breach of

contract and breach of the covenant of good faith and fair dealing. Caine answered and

filed a cross-complaint asserting causes of action for elder abuse, conversion, breach of

fiduciary duty, fraud, unjust enrichment, intentional infliction of emotional distress and

rescission. In March 2011, Farhoomand filed a first amended complaint alleging causes

of action for breach of contract, breach of fiduciary duty, constructive and promissory

fraud, and declaratory relief/quiet title. He sought an injunction, interpleading of the

monies paid on the Juniper property, an accounting, and implied contractual or equitable

indemnity. In part, Farhoomand alleged that Caine gave him real estate advice in 2009

and purchased the Juniper property with the parties' understanding that she would

purchase it for his benefit and sell it to him with Caine holding the mortgage and

Farhoomand making monthly payments for its purchase. He alleged they entered into an

oral agreement whereby Caine would transfer title to the Juniper property by grant deed

to Farhoomand, and Farhoomand would pay Caine $605,000 at a 5.5 percent interest rate.

He alleged that while a grant deed, note, preliminary change of ownership report, deed of

7 trust and loan schedule were prepared, Caine instructed the document center not to file

the documents, then served Farhoomand with a notice to vacate the premises.

Caine eventually filed a first amended cross-complaint in part alleging financial

elder abuse. She alleged Farhoomand had engaged in a "surreptitious scheme . . . to take

financial advantage" of her by convincing her he was her friend while he acted as her

physician. She alleged he improperly accepted money from her while she was

emotionally and physically depleted, and manipulated her into lending him money, which

she "felt compelled" to do because she "felt she had no choice." Caine alleged she

purchased the Juniper property in her own name, furnished it, and began residing in it.

Caine alleged that in September 2009, Farhoomand expressed an interest in purchasing

the Juniper property from her, and based on his false representations, she allowed him to

reside there and would transfer title to him on the condition that he repay the personal

loans, pay for the furnishings, and make an approximately 20 percent down payment.

Caine alleged that Farhoomand agreed in response he would only use the Juniper

property for legal purposes and would continue to be her physician and friend, and that

she prepared the note, deed of trust and grant deed only for "estate purposes" so her heirs

would know her wishes; she purposely did not deliver or record them with Farhoomand's

knowledge and consent. Caine alleged that in early December 2010, she discovered

Farhoomand was cultivating and using marijuana and confronted him about it, after

which he discontinued his contact and care. She alleged he changed the locks on the

Juniper property and sought a temporary restraining order against her, falsely alleging she

harassed him in order to prevent her from visiting or staying at her property.

8 Farhoomand's In Limine Motion

Following the parties' unsuccessful dispositive motions, the matter proceeded to a

jury trial. Before trial, Farhoomand moved in limine to exclude evidence and testimony

from Caine—originally contained in an earlier-filed opposing summary judgment

declaration—regarding marijuana and its use or cultivation. He argued the probative

value of any such evidence or testimony would be substantially outweighed by undue

prejudice, the evidence would confuse or mislead the jury, and it would unduly consume

time under Evidence Code section 352. He also argued such evidence or testimony

would lack foundation and constitute improper character evidence. He asserted Caine

could not demonstrate that any alleged breach of the deed of trust arising from purported

marijuana was material or caused any damage. As to the latter point, Farhoomand argued

the deed of trust merely required the trustor to "commit or permit no . . . violation of laws

. . . relating to use, alterations or improvements . . . and do all other acts which . . . this

Deed of Trust may require to preserve this security" and that Caine's sole recourse was

not to invalidate the trust deed, but to have Farhoomand "appear in and defend any action

or proceeding purporting to affect the security" or the beneficiary or trustee's rights. He

maintained Caine could not show any action or proceeding had been commenced, or that

Farhoomand had not appeared or failed to defend any such action.

In opposition, Caine argued the evidence was not impermissible character

evidence but rather was critical to her defense of Farhoomand's breach of contract action

in that Farhoomand was required to show he had substantially performed under the

contract or that his performance was excused. She argued that California and Federal law

9 subjected property used to manufacture controlled substances to forfeiture and exposed

her to serious threat of criminal liability, which was relevant to explain why she served

the 60-day notice to vacate and as to her severe emotional distress. She argued the fact

Farhoomand was growing marijuana at the property and likely abusing it was a factor that

tended to show he may have committed elder abuse.

The court granted Farhoomand's motion on both relevance and Evidence Code

section 352 grounds. It stated that "the quantity, the quality, the amounts, the

circumstances actually all have a great deal to do with the criminality of the event. And

the only thing I've seen so far is a picture of some small seedlings that you can't tell from

the picture that they're marijuana, but sounds like there may be circumstances that would

support the suggestion that it is. And maybe even a statement from Dr. Farhoomand that

they were his father's marijuana. But it's a side issue that I think could take the jury

completely down the wrong path." At the same time, the parties discussed whether the

court would admit evidence of the restraining order Farhoomand had obtained against

Caine, and the court indicated the underlying factual findings supporting that order—

which did not mention any facts concerning marijuana—could be relevant on Caine's

defenses and cross-complaint depending on Caine's testimony. Caine's counsel protested

that Caine was unable to tell the jury "what precipitated all of this" and that the marijuana

evidence was a "big, big part of this case." The court responded it had a picture of eight

seedlings;6 that that amount of seedlings was "consistent with personal use, which in

6 The photographs actually show six boxes of some sort of seedlings. 10 California isn't a crime. . . . I've got one picture and your statements, even if I accept

those as true, I don't think they're violations of the law. [¶] And if it's a sale, she doesn't

have the right to tell him to stop. If it's a rental, she doesn't have the right to tell him to

stop." The court acknowledged that federal law was different, and "the reason I'm

keeping [the marijuana evidence] out under [Evidence Code section] 352 [is] that it's . . .

a side issue." It reiterated its ruling while explaining that Caine was bound by the

findings of the judge who had presided over the restraining order proceedings, stating that

Caine "can't argue separately from what that judge has found. [¶] But if she doesn't deny

that or if she says, 'Yeah, I yelled at his mother and at him, but I was mad because he was

stealing my money and stealing my house and everything else,' I think that's fair game. I

just don't think that this marijuana thing—it's not in here. And grant it, I haven't read

every transcript of everything that was said, but I read the statements of decision, the

objection, . . . and final statement of decision [on the restraining order]. And I think

under [Evidence Code section] 352, if we start going down that path, I run the risk that—

I run two risks. One, that some jurors thinks that everybody who has ever used marijuana

is a drug person and should be found against. On the other hand, we have got to question

them about medicinal marijuana and their knowledge of that. And we may end up with

somebody who takes sympathy. It's a side issue we're not going to go on."

Trial Evidence

At trial, Farhoomand testified that before Thanksgiving 2010, he had told Caine

that he was dating a woman named Samantha, and believed Caine would be happy for

him. Instead, Caine researched the woman, called his family, and came to his office

11 saying his girlfriend was uneducated, unfit and loose. According to Farhoomand, on the

Thanksgiving holiday weekend, Caine called him and told him she was coming to the

Juniper property to throw his girlfriend out and made derogatory comments.

Farhoomand testified that Caine arrived at the house and yelled at him from her car,

telling him he had five minutes to get her out of the house or Caine would throw her out

herself. He testified that the next day, he brought his mortgage payment and Caine's

Oceanside house keys back to her and told her he could not be her doctor. In December

2010, Caine left berating messages on Farhoomand's phone, in part calling him a "dumb

fuck" and telling him he was letting "a nobody that has nothing to dictate to you" and

should "get rid of the god damn ho."

Caine testified that she purchased the Juniper property to use as a residence and

live in it herself, and she did so when she was in California until December 2009. Caine

denied that the dual ledgers in her handwriting were mortgage ledgers despite the fact

that they read "mortgage balance," contained "principal" and "interest" columns, reflected

a 30-year term, and showed the balance decreasing when Farhoomand made payments.

Caine testified that Farhoomand was paying her back and living on the property, and she

characterized his interest payments as rent. According to Caine, her agreement with

Farhoomand was that she would turn the property over to him if he had made enough

payments—about 20 percent of the $526,000 cost—to obtain "hard money equity" in it.

Caine denied getting upset about Farhoomand's girlfriend or that she had inquired about

the woman with Farhoomand's office assistant and sister. Though she admitted going to

the Juniper house, she denied ever speaking to Farhoomand's girlfriend, telling

12 Farhoomand she never wanted to see his girlfriend at the Juniper property, or calling his

girlfriend names. Caine admitted she later mailed Farhoomand a card in which she wrote

that Samantha—who she referred to as a "hoe handle"—had "destroyed our four-year

friendship."

Caine was permitted to testify that on December 6, 2010, she discovered some

activity on the Juniper property that she thought jeopardized her interest in it; that she

was "worried to death" and was "very suspicious of what was going on . . . like I'm going

to be losing my property" and her investment in it. She testified that she called

Kessinger, who instructed her to file a 60-day notice to evict Farhoomand. Caine

testified she believed she was locked out of the Juniper property around December 10,

2010, maybe December 8, 2010, and Farhoomand terminated his doctor/patient

relationship with her on December 8, 2010.

The Jury's Verdicts and Posttrial Motions

The jury returned eight special verdicts on the parties' causes of action, making

unanimous special findings in Farhoomand's favor on his breach of contract,

concealment/breach of fiduciary duty, false promise, negligent misrepresentation and

intentional misrepresentation causes of action.7 It likewise made findings in

7 In part, the jury found that the parties had entered into a contract, Farhoomand did all or substantially all of the significant things the contract required him to do, Caine had failed to do something the contract required her to do, and Farhoomand was harmed by her failure. It found Caine owed Farhoomand a fiduciary duty but failed to disclose a material fact she should have disclosed, deceiving Farhoomand and causing him financial damage. The jury found Caine made an important promise and false representation to 13 Farhoomand's favor on the causes of action in Caine's cross-complaint for financial elder

abuse, intentional infliction of emotional distress, and conversion. The jurors left blank

the lines for past and future noneconomic damages, and the court confirmed during

polling that the jury intended to award zero damages on those items.

In June 2013, the court entered judgment in Farhoomand's favor on his first

amended complaint and Caine's cross-complaint, granting specific performance of the

contract for the Juniper property's transfer from Caine to Farhoomand. The judgment

required turnover of the grant deed to the court, release of the funds held in trust to Caine,

and payments of $3,150 by Farhoomand to Caine until the note was paid in full. The

judgment stated it was to be amended or supplemented to reflect costs and attorney fees.

In July 2013, Caine filed her notice of appeal from the judgment.

DISCUSSION

I. Exclusion of Marijuana Evidence

Caine contends the trial court abused its discretion by excluding her testimony and

other evidence regarding Farhoomand's alleged marijuana cultivation. She repeats her

contentions asserted in opposition to Farhoomand's in limine motion, and we address

each in turn below.

A. Legal Principles

"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) The

Evidence Code defines relevant evidence to mean "evidence . . . having any tendency in

Farhoomand without intending to perform them, and Farhoomand relied upon her promise and representation causing him financial damage.

14 reason to prove or disprove any disputed fact that is of consequence to the determination

of the action." (Evid. Code, § 210.) "The test of relevance is whether the evidence tends

' "logically, naturally, and by reasonable inference" to establish material facts . . . .' "

(People v. Scheid (1997) 16 Cal.4th 1, 13; see also Velasquez v. Centrome, Inc. (2015)

233 Cal.App.4th 1191, 1211.) "A trial court 'is vested with wide discretion in

determining the relevance of evidence,' but it has 'no discretion to admit irrelevant

evidence.' " (Velasquez, at p. 1211.)

"[E]ven relevant evidence may be excluded under Evidence Code section 352,

which provides that the trial court 'may exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.' In general, evidence is substantially more prejudicial

than probative if it poses an intolerable risk to the fairness of the proceedings or the

reliability of the outcome. [Citation.] Exclusion of evidence under Evidence Code

section 352 is reserved for those cases where the proffered evidence has little evidentiary

value and creates an emotional bias against the party. [Citation.] [¶] We review any

ruling by the trial court as to the admissibility of evidence for abuse of discretion.

[Citations.] We do not substitute our judgment for that of the trial court and may grant

relief only when the asserted abuse of discretion constitutes a miscarriage of justice."

(Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1613.)

15 B. Farhoomand's Breach of Contract Claim

Caine contends the marijuana evidence was critical to show Farhoomand's breach

of the deed of trust that he sought to enforce in his breach of contract cause of action; she

points out cultivation is illegal under California law with a possible exception for

personal medical purposes with a physician's approval, and also illegal under federal law

such that Farhoomand's actions would violate "an express and material term of the deed

of trust . . . ." She maintains that if the jury had considered this evidence, they could have

decided Farhoomand's breach of this provision precluded him from succeeding on his

breach of contract claim.

The law is settled that the breach of an "important condition" to a contract may

relieve the other party from his or her obligations (Wiz Technology, Inc. v. Coopers &

Lybrand (2003) 106 Cal.App.4th 1, 12, italics added; Civ. Code, § 1439), and thus "a

plaintiff suing for breach of contract must prove [he] has performed all conditions on

[his] part or that [he] was excused from performance." (Consolidated World Investments,

Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380; Fairchild v. Park (2001) 90

Cal.App.4th 919, 934.) " 'A party complaining of the breach of a contract is not entitled

to recover therefor unless he has fulfilled his obligations.' " (Wiz Technology, Inc. v.

Coopers & Lybrand, at p. 12.) Farhoomand's contract theory on which the jury was

instructed was that he and Caine had entered into an oral or implied agreement, the terms

of which were reflected in the deed of trust and other documents prepared by Kessinger,

and that Caine breached their contract by failing to record the deed and attempting to

evict him even though he did all the things required of him under their agreement. Under

16 the above principles, it was Farhoomand's burden to establish he did all or substantially

all of the significant things their contract required him to do, and he presented proof that

he made regular mortgage payments to Caine, and then to the interest-bearing account

after their relationship ended, in accord with (and mostly exceeding) the terms of the

unrecorded trust deed and amortization schedule.

Caine relies on the provision of the trust deed stating: "TO PROTECT THE

SECURITY HEREOF, TRUSTOR AGREES: (1) . . . to commit or permit no waste,

no violation of laws or covenants or conditions relating to use, alterations or

improvements . . . and do all other acts which . . . this Deed of Trust may require to

preserve this security." To demonstrate the relevance of Farhoomand's alleged marijuana

cultivation on the theory that it was a material violation of the trust deed, however, Caine

was required to show not just a violation of law, but also a resulting diminution in the

value of the property such that her security was substantially impaired. (See Miller v.

Waddingham (1891) 91 Cal. 377, 381-382 [so long as the sufficiency of the security is

unimpaired, a vendor who holds legal title to property as security for the fulfillment of a

purchase contract "has no right to disturb the vendee in any use or enjoyment which he

may make of the land. Such use and enjoyment by the vendee is a use of his own

property, and unless he thereby impairs the security, or diminishes the estate which he

received from the vendor, or the value of the land as he received it, he should not be

restrained"]; Civ. Code, § 2929 ["No person whose interest is subject to the lien of a

mortgage may do any act which will substantially impair the mortgagee's security"];

4 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 10:67, p. 10-264.)

17 The probative value of the marijuana evidence on the question of whether

Farhoomand substantially performed their contract, thus turned not only on whether

Caine could establish the six seedling boxes were in fact marijuana seedlings, but also on

whether the existence of the seedlings violated the law, and whether such a violation

resulted in the property's diminished value and substantial impairment in Caine's security.

Caine made no such showing in opposition to Farhoomand's motion in limine; she

offered no proof that any lawsuit was threatened so as to jeopardize the security or that

the Juniper property's value was diminished in any way by Farhoomand's conduct. We

conclude the trial court did not abuse its discretion in excluding on relevance grounds

Caine's testimony concerning her belief Farhoomand was growing marijuana or the

photographs of the purported seedlings. Such evidence did not tend to disprove the

substantial performance element of Farhoomand's breach of contract claim.

C. Demise of the Parties' Relationship

Caine contends the marijuana evidence was "extremely probative" to explain the

demise of her relationship with Farhoomand and the reason she served him with the

eviction notice. She points out Farhoomand was permitted to recount details of her

hostility toward his girlfriend, which she denied, and she asserts she was left unable to

controvert that narrative. Caine argues that absent the marijuana evidence, the jury was

"left with the sense that Caine was an irrationally scorned and bitter woman, and

Farhoomand, a victim of her overbearing control and rage."

Based on the claims presented to the jury, we see the deterioration of Caine's and

Farhoomand's relationship, and Caine's service of the eviction notice, of tenuous

18 importance to the action. The main controversy was the parties' differing positions

concerning their contract and Farhoomand's interest in the Juniper property.

Farhoomand's claim, which was supported by abundant documentary and other evidence

including the testimony of document preparer Kessinger and Caine's realtor, was that he

and Caine had agreed Caine had sold him the Juniper property under the terms contained

in the note, deed of trust and other unrecorded documents prepared by Kessinger.

Farhoomand demonstrated he made mortgage payments to Caine and then to the interest-

bearing account in compliance with those terms. In response, Caine maintained their

agreement was different: that Farhoomand would live in the Juniper property while he

repaid her the monies he borrowed as well as rent, and she would turn the property over

to him if he met a condition precedent of paying Caine 20 percent of the $525,000

purchase price. She denied Farhoomand's payments were mortgage payments. Caine

also claimed no contract was created because she was unduly influenced and, her consent

was obtained by duress or fraud by Farhoomand. The jury received instructions on those

affirmative defenses.

It may be that evidence of Caine's belief that Farhoomand was unlawfully growing

marijuana tended to explain why she served her eviction notice on him, and countered

Farhoomand's claim that she only did so because she harbored ill will toward his

girlfriend. However, we agree with the trial court that any probative value of the

evidence on that collateral matter—particularly in view of the fact Farhoomand is a

medical doctor and the evidence his father suffered from cancer at the time—was

substantially outweighed by its unfairly prejudicial effect. Evidence of marijuana

19 cultivation would pose a great risk of allowing the jury to decide the case on purely

emotional grounds based on a general contempt for drug use. Individuals have strong

attitudes about marijuana and such evidence could lead the jury to presume Farhoomand

was a drug user and cast doubt on his character. Admission of the evidence would

unduly consume time in assessing the foundation for and reasonableness of Caine's

belief, and would have devolved into a minitrial into medical marijuana laws requiring a

showing to the jury of legal and nonlegal uses of marijuana under both California and

Federal law. For these reasons, the trial court did not abuse its discretion in concluding

the probative value of the purported marijuana evidence was substantially outweighed by

its prejudicial effect so as to preclude its admission under Evidence Code section 352.

D. Financial Elder Abuse Claim

The trial court did not abuse its discretion by concluding the marijuana evidence

did not tend to prove or disprove any disputed fact that was of consequence to Caine's

financial elder abuse cause of action. (Welf. & Inst. Code, § 15610.30.8) Citing Welfare

8 As it was defined at the time of trial in this matter, financial abuse of an elder occurs when a person: "(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code." (Former Welf. & Inst. Code, § 15610.30, subd. (a).) Absent intent to defraud or undue influence, a plaintiff must prove at least a " 'wrongful use' " of property. (Welf. & Inst. Code, § 15610.30, subd. (a)(1); Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-528.) Effective January 1, 2014, the Legislature amended Welfare and Institutions Code section 15610.30, subdivision (a)(3) to refer to a 20 and Institutions Code section 15600, subdivision (e) for the proposition that a caretaker's

abuse of alcohol or drugs can be a "factor[]" that contributes to elder abuse, neglect or

abandonment, Caine contends Farhoomand's marijuana cultivation is "effectively an

element" of her financial elder abuse claim. The contention is meritless. Even if Caine

were permitted to testify that the seedlings she observed in the closet were marijuana,

there was no direct or circumstantial evidence that Farhoomand was using or abusing

marijuana, or under the influence of marijuana at any time. More importantly, evidence

of marijuana cultivation, standing alone, is not probative on whether the person

cultivating it took or retained another person's property for wrongful use, with intent to

defraud, or by undue influence as required to prove financial abuse of an elder.

E. Prejudice

Even if we were to conclude the trial court abused its discretion in excluding the

marijuana evidence, we would hold Caine cannot show prejudice so as to compel reversal

of the judgment. In evaluating the effect of any error, we are governed by article VI,

section 13 of the California Constitution, which precludes reversal unless " 'the error

complained of has resulted in a miscarriage of justice.' " (See Cassim v. Allstate Ins. Co.

(2004) 33 Cal.4th 780, 800-802.) To determine whether a miscarriage of justice results

from the erroneous exclusion of evidence, we examine the "entire cause," including the

evidence. (Cal. Const., art. VI, § 13; Evid. Code, § 354; California Crane School, Inc. v.

broader definition of undue influence. (Stats. 2013, ch. 668, § 2; see Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 479.) We presume the jury instruction on this issue was based on the prior version of the statute.

21 National Commission for Certification of Crane Operators (2014) 226 Cal.App.4th 12,

24.) "A miscarriage of justice occurs only when the reviewing court is convinced it is

reasonably probable a result more favorable to the appellant would have been reached

absent the error." (California Crane, at p. 24; Coastside Fishing Club v. California Fish

and Game Commission (2013) 215 Cal.App.4th 397, 428; P&D Consultants, Inc. v. City

of Carlsbad (2010) 190 Cal.App.4th 1332, 1348 [erroneous exclusion of evidence causes

prejudice amounting to a miscarriage of justice only if " 'a different result was probable if

the evidence had been admitted' "]; see also Evid. Code, §§ 353, 354; Code Civ. Proc.,

§ 475.) Probability in this context means merely a " 'reasonable chance, more than an

abstract possibility.' " (Cassim, at p. 800.)

It is Caine's burden to demonstrate prejudice under these standards. (Saxena v.

Goffney (2008) 159 Cal.App.4th 316, 332; Paterno v. State of California (1999) 74

Cal.App.4th 68, 105 [appellant bears the duty of spelling out in her brief exactly how the

error caused a miscarriage of justice].) " 'Prejudice is not presumed . . . .' " (Turman v.

Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 58.)

Our review of the entire record (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at

pp. 801-802), compels us to conclude that had Caine been permitted to testify about her

belief that Farhoomand was growing marijuana seedlings and admit her photographs, it

would not have changed the outcome of this trial. Farhoomand presented abundant

evidence, including Caine's own handwritten notes and telephone messages, that severely

undermined and effectively destroyed Caine's credibility on nearly every contested issue.

Independent witnesses testified that Caine had agreed to purchase the Juniper property so

22 she could in turn sell it to Farhoomand, and that Caine had approved the deed of trust and

note, preliminary change of ownership and amortization schedule without any indication

of undue influence or duress. Caine's handwritten mortgage ledgers supported

Farhoomand's claim that they had entered into a purchase contract under the terms of the

written documents. The jury rejected Caine's version of events in its detailed special

verdict findings, and we see nothing about the purported marijuana evidence that would

have changed the result of the trial. We conclude Caine has failed to establish that any

purported evidentiary error resulted in a miscarriage of justice.

II. Entry of Amended Judgment

In October 2013, several months after Caine filed her notice of appeal, the court

entered an amended judgment awarding Farhoomand costs and attorney fees. It also

added the following line to the judgment: "The Court has determined that the purchase

price by Plaintiff to Defendant of the property known as 908 Juniper Lane was

$525,000."

Caine contends her July 2013 notice of appeal divested the court of power to

amend the judgment in that manner, and even absent her notice of appeal, the court

lacked power to amend the judgment for judicial error. She is correct that the filing and

perfecting of the notice of appeal divested the court of jurisdiction to amend the

judgment. (Takahashi v. Fish & Game Com. (1947) 30 Cal.2d 719, 725 ["An appeal

removes from the jurisdiction of the trial court the subject matter of the judgment or order

appealed from, including all issues going to the validity or correctness of such judgment

or order. The trial court has no power thereafter to amend or correct the judgment or

23 order, or to vacate or to set it aside"], revd. on other grounds, Takahashi v. Fish & Game

Com. (1948) 334 U.S. 410; California State Auto. Assn. Inter-Ins. Bureau v. Jackson

(1973) 9 Cal.3d 859, 862, fn. 3; Eisenberg v. Superior Court (1924) 193 Cal. 575, 578-

579; Linstead v. Superior Court (1936) 17 Cal.App.2d 9, 12; Foggy v. Ralph F. Clark &

Associates, Inc. (1987) 192 Cal.App.3d 1204, 1211.)

The court, however, retained jurisdiction to decide postjudgment fees and costs

notwithstanding the appeal from the final judgment. (Bankes v. Lucas (1992) 9

Cal.App.4th 365, 368; see Code, Civ. Proc., § 904.1; P R Burke Corp. v. Victor Valley

Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053 ["if a judgment

determines that a party is entitled to attorney's fees but does not determine the amount,

that portion of the judgment is nonfinal and nonappealable" until the amount of fees is

determined].) A partially void judgment can be modified in order to save the portion that

was not in excess of jurisdiction. (Dakota Payphone, LLC v. Alcaraz (2011) 192

Cal.App.4th 493, 503 [when a "judgment only partially exceeds the trial court's

jurisdiction, the trial court can modify the judgment in order to save the portion that was

not void"].) The portion amending the original judgment to add Farhoomand's costs and

attorney fees is unaffected by this reversal. On remand, the trial court is to modify the

amended judgment to omit the declaration concerning the property's purchase price.

III. Motion for Cost-of-Proof Sanctions

Following trial, Farhoomand moved for cost-of-proof sanctions under section

2033.420, subdivision (b)(3). He argued Caine had either denied or failed to admit five

key issues in response to his discovery requests for admissions which he later proved true

24 at trial, and the sought-after admissions were of such substantial importance that they

would have expedited or shortened the trial had Caine admitted them. Farhoomand asked

Caine to admit: (1) "you purchased the [Juniper property] so that you could sell the

property to Farhoomand"; (2) "you had an agreement with Farhoomand for the sale of the

property to him"; (3) "Farhoomand is entitled to ownership of the property"; (4) "you

added any and all monies owed to you, including improvements, furnishings and all other

monies, to the mortgage for the property"; and (4) "Farhoomand did not commit financial

elder abuse." (Some capitalization omitted.)

Farhoomand sought an award of $287,040 in attorney fees as well as $7,448.05 in

expert fees and costs. In September 2013, the trial court declared Farhoomand the

prevailing party and granted Farhoomand's motion, awarding him the requested amount

of attorney fees as cost-of-proof sanctions.

"A party to a civil action may propound a written request that another party 'admit

the genuineness of specified documents, or the truth of specified matters of fact, opinion

relating to fact, or application of law to fact.' [Citations.] Section 2033.420 provides, '(a)

If a party fails to admit the genuineness of any document or the truth of any matter when

requested to do so under [section 2033.010], and if the party requesting that admission

thereafter proves the genuineness of that document or the truth of that matter, the party

requesting the admission may move the court for an order requiring the party to whom

the request was directed to pay the reasonable expenses incurred in making that proof,

including reasonable attorney's fees. [¶] (b) The court shall make this order unless it

25 finds any of the following: [¶] (1) An objection to the request was sustained or a

response to it was waived under Section 2033.290. [¶] (2) The admission sought was of

no substantial importance. [¶] (3) The party failing to make the admission had

reasonable ground to believe that that party would prevail on the matter. [¶] (4) There

was other good reason for the failure to admit.' . . . ' "[T]he determination of whether

'there were no good reasons for the denial,' whether the requested admission was 'of

substantial importance,' and the amount of expenses to be awarded, if any, are all within

the sound discretion of the trial court." ' " (City of Glendale v. Marcus Cable Associates,

LLC (2015) 235 Cal.App.4th 344, 351-352, quoting Bloxham v. Saldinger (2014) 228

Cal.App.4th 729, 753.)

"[A]n award of expenses pursuant to section [2033.420] is not a penalty. Instead,

it is designed to reimburse reasonable expenses incurred by a party in proving the truth of

a requested admission . . . such that trial would have been expedited or shortened if the

request had been admitted." (Brooks v. American Broadcasting Co. (1986) 179

Cal.App.3d 500, 509 [discussing section 2033, subdivision (o), the predecessor to section

2033.420]; accord, Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865.) "[A]n award of

costs of proof for a denial of a request for admission involves the weighing of a number

of factors, such as whether the matter denied was of 'substantial importance;' whether

there was a 'reasonable basis' for the denial; whether the party making the denial knew or

should have known at the time that the requested matter was of 'substantial importance'

and was true; whether there were 'other good reasons for the denial'; and whether and to

what extent the responding party made a good faith effort otherwise to resolve the matter.

26 [Citations.] Also, unlike sanctions for discovery misconduct, costs of proof under section

2033.420 are awarded after trial; therefore, an award of such costs is not a device used by

trial courts to control pretrial proceedings. Instead, as with attorney fees and costs

awarded after judgment to a prevailing party, an award of costs of proof is a fee shifting

and cost allocation mechanism that is available against parties." (City of Glendale v.

Marcus Cable Associates, LLC, supra, 235 Cal.App.4th at p. 354.)

B. The Trial Court Retained Jurisdiction to Consider Farhoomand's Postjudgment

Motion for Cost-of-Proof Sanctions Pending Caine's Appeal

Caine contends that Farhoomand's motion for cost-of-proof sanctions was not an

act of enforcing a judgment or order but instead sought a new judgment or order. She

maintains that as a consequence, the motion was precluded under section 916 and the

court lacked authority to make additional findings pending her appeal. Caine argues that

if her appeal is successful, it would render some or all of her denials accurate and

Farhoomand's motion "an impossibility" such that Farhoomand's motion "is properly

deemed 'embraced' in or 'affected' by" the appeal and subject to the stay. She further

argues, citing Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 (Varian),

that Farhoomand's motion is not "ancillary" to the appealed judgment; it was not a

proceeding that "could or would have occurred regardless of the outcome of the appeal."

(Id. at p. 191.) She asks us to vacate the court's order awarding Farhoomand

$294,488.05.

Section 916, subdivision (a) provides in part that "the perfecting of an appeal stays

proceedings in the trial court upon the judgment or order appealed from or upon the

27 matters embraced therein or affected thereby, including enforcement of the judgment or

order, but the trial court may proceed upon any other matter embraced in the action and

not affected by the judgment or order." "Under section 916, 'the trial court is divested of'

subject matter jurisdiction over any matter embraced in or affected by the appeal during

the pendency of that appeal. [Citation.] 'The effect of the appeal is to remove the subject

matter of the order from the jurisdiction of the lower court . . . .' [Citation.] Thus, 'that

court is without power to proceed further as to any matter embraced therein until the

appeal is determined.' " (Varian, supra, 35 Cal.4th at pp. 196-197, fn. omitted, see also

Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 51.) "[W]hether a matter

is 'embraced' in or 'affected' by a judgment within the meaning of section 916 depends

upon whether postjudgment trial court proceedings on the particular matter would have

any impact on the 'effectiveness' of the appeal. If so, the proceedings are stayed; if not,

the proceedings are permitted." (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)

However, "the pendency of an appeal does not divest the trial court of jurisdiction to

determine ancillary or collateral matters which do not affect the judgment on appeal."

(Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)

In Varian, the California Supreme Court explained that a proceeding on a trial

court matter does not have an impact on the effectiveness of a pending appeal merely

because the proceeding may impact the outcome of the appeal, or even render it moot.

(Varian, supra, 35 Cal.4th at p. 189 ["The fact that the postjudgment or postorder

proceeding may render the appeal moot is not, by itself, enough to establish that the

proceeding affects the effectiveness of the appeal and should be stayed under section

28 916"].) "[S]omething more is needed. For example, the trial court proceeding must

directly or indirectly seek to 'enforce, vacate or modify [the] appealed judgment or order.'

. . . Or the proceeding must substantially interfere with the appellate court's ability to

conduct the appeal." (Id. at pp. 189-190, fn. and citation omitted.) "A trial court . . .

affects the effectiveness of an appeal if the possible outcomes on appeal and the actual or

possible results of the proceeding are irreconcilable" or "if the very purpose of the appeal

is to avoid the need for that proceeding." (Id. at p. 190, italics added.) None of those

situations are present here.

Caine's arguments concerning the "impossibility" of Farhoomand's motion is

misplaced as it is premised on the outcome of the appeal, not the impact of the

postjudgment motion. She does not explain how Farhoomand's postjudgment motion

indirectly or directly sought to enforce, vacate or modify the appealed judgment, or

would substantially interfere with this court's ability to conduct the present appeal.

(Varian, supra, 35 Cal.4th at p. 189.) Likewise, we need not address her argument that

the motion is not ancillary because it would have occurred regardless of the appeal's

outcome. Varian makes clear that this is a separate basis to conclude a postjudgment

proceeding is permitted as ancillary or collateral. (Id. at p. 191 ["A postjudgment or

postorder proceeding is also ancillary or collateral to the appeal despite its potential

affect on the appeal, if the proceeding could or would have occurred regardless of the

outcome of the appeal"], italics added.) Because we conclude Farhoomand's motion is

not embraced in or affected by the judgment, his motion proceedings were permitted.

(Id. at p. 190.)

29 Farhoomand's motion constitutes a postjudgment proceeding to shift and allocate

costs, akin to a postjudgment motion for prevailing party attorney fees and costs, which,

as we have stated above, is not stayed under section 916 pending an appeal. (Robertson

v. Rodriguez (1995) 36 Cal.App.4th 347, 360; Bankes v. Lucas, supra, 9 Cal.App.4th at

p. 368.) A postjudgment motion seeking prevailing party attorney fees is not stayed

under section 916 even though a successful appeal may change prevailing party status

and eliminate the basis for granting fees. Because Farhoomand's motion for cost-of-proof

sanctions is not a matter embraced within or affected by this appeal, the pendency of this

appeal did not divest the trial court of jurisdiction over his motion.

C. The Trial Court Did Not Abuse its Discretion In Awarding Attorney Fees as

Cost-of-Proof Sanctions

As stated, the determination of whether Caine had reasonable grounds to believe

she would prevail on the issues and the amount of expenses are all within the sound

discretion of the trial court. (See Brooks v. American Broadcasting Co., supra, 179

Cal.App.3d at p. 508; City of Glendale v. Marcus Cable Associates, LLC, supra, 235

Cal.App.4th at pp. 351-352.) An abuse of discretion occurs when it is shown the court's

ruling is arbitrary or capricious (Culbertson v. R.D. Werner Co., Inc. (1987) 190

Cal.App.3d 704, 710), or exceeds the bounds of reason. (Piscitelli v. Friedenberg (2001)

87 Cal.App.4th 953, 972; accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 566

[abuse of discretion requires a showing that the trial court " ' "exceed[ed] the bounds of

reason, all of the circumstances before it being considered" ' "].) Under this deferential

30 standard of review, we must uphold the trial court's determination, even if we disagree

with it, as long as it is reasonable. (Stull v. Sparrow, supra, 92 Cal.App.4th at p. 864.)

Caine contends the trial court erred when it awarded Farhoomand substantial

attorney fees under section 2033.420. She does not challenge the notion that the

requested admissions were of substantial importance to the action, or that Farhoomand

ultimately proved them, and we conclude these issues met that test. (See Wimberly v.

Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634 ["An issue is of 'substantial

importance' if it has 'at least some direct relationship to one of the central issues in the

case, i.e., an issue which, if not proven, would have altered the results in the case' "].)

Rather, she maintains she had reasonable grounds to believe she would prevail on the

issues pertaining to the Juniper property's transfer, and reasonably denied Farhoomand's

request to admit that he did not commit financial elder abuse. Regarding the property's

transfer, Caine points out it was undisputed she did not deliver the deed to Farhoomand

or record the instruments, which invalidated the transfer and negated any intent to

transfer on her part. She argues that in view of the marijuana evidence, which she was

prevented from discussing on the eve of trial, she reasonably believed she would prevail.

The trial court did not abuse its broad discretion in this case; its ruling did not

exceed the bounds of reason. Caine ignores a vast amount of evidence contradicting her

claims and affecting her credibility, including matters within her own personal

knowledge, most of which existed before any litigation commenced, including Caine's

handwritten note to Farhoomand congratulating him and referring to the Juniper property

as "your new home," and the mortgage ledgers in Caine's handwriting reflecting

31 Farhoomand's payments to her and the total mortgage amount. Caine's own discovery

admissions explained how she reached the total principal sum of $605,000. She

disregards the testimony of her own realtor that Caine was buying the property for

Farhoomand, and Kessinger's testimony that Caine told her she was going to be

Farhoomand's lender in his purchase of the Juniper property.

As for her elder abuse claim, Caine points out that it was largely undisputed at trial

that Farhoomand borrowed nearly $100,000 from her, moved into the Juniper property

while she was living there, but asked her to leave the house and changed the locks. She

argues based on this evidence it was reasonable for her to believe she would prevail on a

claim for financial elder abuse. Again, we disagree, in view of the substantial amount of

evidence—all within Caine's personal knowledge before litigation commenced—

contradicting Caine's characterization of events. This includes evidence establishing it

was Caine who initiated the gifts and loans to Farhoomand and who directed and

controlled the sale of the Juniper property to him, Caine's note showing she willingly left

the Juniper property when Farhoomand asked if he could live alone there, and

Kessinger's testimony that she observed no undue influence or duress in connection with

the sales transaction, which she understood as Caine purchasing the Juniper property to

act as a lender in the sale to Farhoomand. The overwhelming nature of the evidence

against Caine is sufficient to show that she denied Farhoomand's requests for admission

without the requisite good faith or a reasonable basis for believing she would prevail on

Farhoomand's claims and her elder abuse claim.

32 "[I]f the trial court exercises its discretion and determines that the requirements of

the statute exist, reasonable expenses must be awarded." (Brooks v. American

Broadcasting Co., supra, 179 Cal.App.3d at p. 508; see § 2033.420, subd. (b).) Because

Caine raises only the reasonableness of her denials without challenging the specific

amount of fees requested by Farhoomand, she has not shown the court abused its

discretion in awarding Farhoomand $287,040 in attorney fees.

DISPOSITION

The judgment is reversed to the extent it declares the purchase price of the Juniper

property to be $525,000. The matter is remanded with directions that the superior court

modify the amended judgment to omit that declaration. In all other respects, the

judgment is affirmed. The parties shall bear their own costs on appeal.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.