Opinion
In this case we decide that the employer’s liability portion of a workers’ compensation insurance policy does not provide coverage when the insured employer is sued for sexual harassment and related tort causes stemming from the alleged harassment. We further decide that the insurer, under no policy obligation to indemnify or defend against a pending third party action, did not become liable for defense costs when it notified the insured it would provide a defense under a full reservation of rights and subsequently, after paying only a portion of the defense costs, withdrew. The insured did not allege facts showing either that the insurer was estopped from denying a duty to defend or that an exchange of letters, followed by partial payment, constituted an enforceable contract. We will affirm the trial court’s judgment entered after sustaining the insurer’s demurrer without leave to amend.
The Insurance Policy
Respondent State Compensation Insurance Fund (State Fund) issued a “Workers’ Compensation & Employer’s Liability Insurance Policy” (Policy) to appellants Amen Michaelian, individually and as Amen Michaelian, D.D.S., Inc. (Michaelian). Part 1 of the Policy provided workers’ compensation coverage and part 2 provided employer’s liability coverage. The latter coverage applied to liability for bodily injury or death of an employee of the insured arising out of the injured employee’s employment within California. The employer liability coverage is subject to several express exclusions, including:
“2. punitive or exemplary damages where insurance for such liability is prohibited by law or contrary to public policy;
“5. bodily injury intentionally caused or aggravated by you; or
“6. damages arising out of the discharge of, coercion of or discrimination against any employee in violation of law.”
The Policy does not provide general liability coverage.
Both parts of the Policy coverage provisions obligated State Fund “to defend at our expense any claim, proceeding or suit against [Michaelian] for benefits payable by this insurance. We have the right to investigate and settle these claims, proceedings or suits. [H We have no duty to defend a claim, proceeding or suit that is not covered by this insurance.”
The Cobb Complaint
In August 1993 Toni Cobb (Cobb) sued Michaelian in Fresno County Superior Court (Cobb v. Michaelian, supra, No. 494150-6). Cobb’s complaint alleged she was employed by Michaelian from February 4, 1990, to September 21, 1992. During that time Michaelian allegedly subjected her to verbal, physical and visual sexual harassment which included:
a. making vulgar comments in front of Cobb and others expressing his desire to engage in oral and anal copulation, homosexual activity, and pedophilic conduct;
b. commenting that he wanted to engage in anal copulation with Cobb;
c. referring to women, in the presence of Cobb and others, as “cunts” and “bitches” and stating that after having babies women should be killed, after which he would engage in necrophilia with the corpses;
d. telling Cobb women are inferior to men and should be exterminated;
e. walking up behind Cobb, grabbing her hair and telling her he wished to ejaculate over her hair and breasts;
f. making similar vulgar comments to Cobb on September 21, 1992, when he hit her in the back;
g. pinching and/or patting Cobb on her backside almost daily.
According to Cobb’s complaint, Michaelian did not respond to her numerous requests to stop his conduct and comments.
On December 1, 1992, Cobb filed a complaint of discrimination with the California Department of Fair Employment and Housing (DFEH) based on Michaelian’s alleged sexual harassment of her. She stated the harassment created a hostile and intimidating work environment that became so intolerable she was forced to quit her job. In March 1993, the DFEH authorized Cobb to file suit against Michaelian.
Based on the alleged facts, Cobb sought compensatory and punitive damagеs for sexual harassment in violation of Government Code section 12940, subdivisions (h) and (i), constructive discharge resulting from harassment, assault and battery, and intentional and negligent infliction of emotional distress.
Demands for Defense of the Cobb Action
On September 30, 1993, Michaelian’s counsel mailed a letter to State Fund requesting indemnity and a defense of the Cobb action under the Policy. State Fund did not respond. A second and third request were sent January 12, 1994, and February 16, 1994, respectively. Again, no response was received. Following a similar letter in April 1994, Michaelian’s counsel received a call from an attorney for State Fund advising Michaelian to contact Donald Bartunek, a State Fund agent in San Francisco. Michaelian’s counsel contacted Bartunek, discussed the pending Cobb action, and аsked the agent to attend an interview of Michaelian being conducted by other insurers on May 6, 1994, in Fresno. Bartunek and a State Fund attorney
On May 23, 1994, Michaelian’s counsel telephoned Bartunek, as no word had been received. Bartunek said a defense and indemnity determination letter had been prepared and would be sent within a day or two. No such letter was received. A subsequent phone message from Michaelian’s counsel to Bartunek went unanswered.
On June 14, 1994, Michaelian’s counsel mailed a letter to Bartunek requesting a defense and indemnity under the Policy, and stating that if no response was received by June 22, 1994, Michaelian would file a legal action against State Fund.
On July 19, 1994, Michaelian filed Fresno County Superior Court case No. 514702-0 against State Fund, seeking damages and declaratory relief. 2 On July 21, 1994, State Fund’s counsel contacted Michaelian’s counsel stating State Fund had received the summons and complaint, and the promised defense and indemnity determination letter “ ‘fell between the cracks because they have so many claims.’ ” State Fund’s attorney said his client had agreed to defend Michaelian under a reservation of rights and would reimburse appellants for expenses incurred from September 30, 1993, forward. That same day Bartunek transmitted a facsimile of the letter to Michaelian and his counsel.
The Reservation of Rights Letter and Response
In State Fund’s letter dated July 21,1994, signed by Bаrtunek, State Fund informed Michaelian and his counsel that it “will accept the tender of defense [of the Cobb action] under a complete reservation of rights.” The letter continued:
“We are currently investigating the facts at this time. However, if the allegations were found to be true, as alleged in some or all of the allegations in this complaint, and if a judgment were rendered against the policyholder for those allegations, we wish to inform you that the State Fund may not be responsible to indemnify the policyholder for that judgment.
“In reviewing this lawsuit, it appears that the allegations by [Cobb] are for Violations of Public Policy. You should be aware, Violations of Public Policy are not insurable acts. I make reference to the case of Coit DraperyCleaners, Inc. et al. v. Sequoia Insurance Company [(1993) 14 Cal.App.4th 1595 (18 Cal.Rptr.2d 692 )] 93 C.D.O.S. 2805.1 also refer you to the case of B & E Convalescent Center v. State Compensation Insurance Fund (1992)8 Cal.App.4th 78 [9 Cal.Rptr.2d 894 ] which аffirmed the trial judge’s ruling that our policy did not afford coverage for wrongful termination/discrimination cases. The ruling held that Insurance Code Section 533 bars indemnity and defense for inherently harmful acts that are wrongful as a matter of law, and that the insured could not reasonably expect such coverage.
“We will pay the ‘reasonable cost’ of your defense until we have paid out in settlement or judgements [sic] the limits of your insurance coverage or satisfied ourselves through our own investigations that your policy does not cover [Cobb]’s allegations against you, the named insured in the Declarations.
“It should be further noted that this agreement to provide a defense under a reservation of rights, does not serve to waive any of the provisions оr conditions contained in our policy. We reserve our rights to reimbursement of all sums paid by State Fund in the defense of this lawsuit and to withdraw from the defense should our investigation, or legal decision determine there is no obligation under this policy.”
The letter also set forth the rates at which State Fund would pay Michaelian’s attorneys, specified information to be included in billings, and recited a number of other conditions to its payment of fees and costs. State Fund also reserved the right to appoint other attorneys to represent Michaelian in the Cobb action. The letter concluded by stating that after certain requested information and billing statements had been received, “State Fund will be able to reimburse any past fees and costs related to the defense of our named insured from the date of the tender of defense to State Fund.”
Once in August and again in September 1994, Michaelian and his counsel met with State Fund representatives and attorneys to discuss various issues concerning defense of the Cobb action. State Fund requested a letter concerning the attorney fees and costs incurred to date in the Cobb action. Michaelian’s counsel sent such a letter on September 23, 1994, and included copies of billing statements from September 30, 1993, through August 31, 1994.
On October 4, 1994, Michaelian’s attorney sent a letter to State Fund’s attorneys referring to the meetings held in August and September. The letter charged that State Fund “has acted in bad faith towards [Michaelian] by State Fund’s failure to timely investigate the clаim, its failure to communicate with its Insured until we filed the Complaint, and by the position that
The letter requested State Fund acknowledge within five days whether it would agree to Michaelian’s request that State Fund reimburse him for defense costs incurred from September 30, 1993. No immediate response was received despite followup letters from Michaelian’s attorneys on October 11 and 12, 1994. On October 17, State Fund’s attorney telephoned Michaelian’s counsel and confirmed that State Fund would reimburse Michaelian for attorney fees and costs incurred in the Cobb action from September 30, 1993. The State Fund attorney said he was reviewing the submitted billing statements and payment would be received shortly.
On Octоber 28, 1994, Michaelian’s attorney sent a letter to Bartunek asking for immediate payment of all billing statements or an explanation why further delay was warranted. Bartunek did not respond to the letter. On November 29, 1994, Michaelian’s counsel again wrote to Bartunek requesting immediate payment and stating service of the summons and complaint in his action against State Fund would be served if payment was not received by December 5. Later on November 29, State Fund issued and mailed its check for $18,212 payable to Michaelian’s counsel. 3
Pleadings indicate on December 5, 1994, State Fund’s attorney mailed a letter to Michaelian’s counsel stating that “ ‘payments are being processed (albeit not as quickly as you might desire).’ ”
On January 6,1995, Bartunek sent Michaelian’s attorneys a letter informing them that State Fund was withdrawing from defense of the Cobb action. Michaelian thereafter continued to incur attorney fees, costs, and expenses in defending the Cobb action.
Michaelian filed a first amended complaint in case No. 514702-0 on April 6, 1995. The amended complaint alleges, among other things, that State Fund’s reservation of rights letter of July 21, 1994, and Michaelian’s letter of October 4, 1994, constituted an agreement enforceable by Michaelian. Michaelian alleged four causes of action based on the Policy: counts (1) breach of contract, (3) breach of implied covenant of good faith and fair dealing, (6) fraud, and (11) declaratory relief; four causes based on the alleged agreement: counts (2) breach of contract, (4) breach of implied covenant of good faith and fair dealing, (7) fraud, and (12) declaratory relief; and four additional causes: counts (5) negligence, (8) intentional infliction of emotional distress, (9) negligent infliction of emotional distress, and (10) constructive trust. The amended complaint alleged Michaelian was damaged from incurring fees, costs, and expenses, and also because settlement of the Cobb action could not be seriously contemplated since “monies possibly available for settlement have been expended, and continue to be expended” in defending the suit.
State Fund filed a general demurrer to the first amended complaint on the grounds it did not state facts sufficient to constitute a causе of action. The trial court sustained the demurrer without leave to amend. The court’s written order states the Policy excludes coverage for punitive damages and for damages arising out of the discharge of or discrimination against any employee, and State Fund had no duty to indemnify or defend the Cobb action. Although the order makes no specific reference to the amended complaint’s allegation that the parties’ correspondence created a separate agreement, the court impliedly rejected that contention, noting that “[Michaelian] ignores the fact that [State Fund] agreed to defend subject to a ‘complete reservation of rights.’ ”
Discussion
Standard of Review
Reviewing the sufficiency of a complaint agаinst a general demurrer is guided by long-settled rules.
(Blank
v.
Kirwan
(1985)
When a demurrer is sustained without leave to amend, it is the duty of the reviewing court to decide whether there is a reasonable possibility that the defect can be cured by amendment. If it can, the trial court has abused its discretion and we must reverse. If it cannot be reasonably cured, there has been no abuse of discretion.
(Kilgore
v.
Younger
(1982)
1. The Policy provides no coverage for the Cobb action.
Michaelian expressly concedes on appeal that the California Supreme Court decision in
La Jolla Beach & Tennis Club, Inc.
v.
Industrial Indemnity Co.
(1994)
La Jolla
did not address or decide whether coverage under the employer’s liability portion of the insurance policy imposed a duty to defend the employee’s civil suit. (
In any event, we are satisfied Michaelian has no viable claim based on the employer’s liability portion of the Policy.
A liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity.
(Gray
v.
Zurich Insurance Co.
(1966)
In deciding whether State Fund owed Michaelian a duty to defend the Cobb action, we must first turn to the Cobb complaint. A complaint is to be “liberally construed” in favor of potential coverage.
(Waller
v.
Truck Ins. Exchange, Inc., supra,
The first and second Cobb causes of action accuse Michaelian of sexual harassment in violation of Government Code section 12940 and
Sexual harassment within the meaning of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) is defined as verbal, physical or sexual behavior directed at an individual because of his or her gender. Such harassment includes, but is not limited to, conduct which is verbal (such as epithets, derogatory comments or slurs), as well as physical and visual insults.
(Flait
v.
North American Watch Corp.
(1992) 3 Gal.App.4th 467, 476-477 [
Cobb’s third and fourth causes of action allege assault and battery and intentional infliction of emotional distress, respectively, based on Michaelian’s conduct. Part 2, section C of the Policy excludes: “5. bodily injury intentionally caused or aggravated by you . . . .” Coverage for these causеs of action is also precluded by Insurance Code section 533. 5
Cobb’s fifth and final cause of action is for negligent infliction of emotional distress. As noted by the trial court, although the fifth cause of action is one for negligence, “[T]he gravamen of the
Cobb
complaint is conduct constituting sexual harassment in violation of public policy .... The pleading of alternative legal theories of liability does not alter the nature of the conduct which forms the basis for the complaint. [Michaelian] cannot avoid contractual policy exclusion merely affixing an additional label or separate characterization to the act or event causing liability. In other words, [Michaelian] obviously intended to make the remarks which were mаde. See
Chadwick
v.
Fire Ins. Exchange
(1993)
None of the facts alleged in the Cobb complaint give rise to any conceivable theory bringing the Cobb action within the Policy’s coverage. In some
We conclude the demurrer was properly sustained as to the first, third, sixth, and eleventh causes of action.
2. There was no enforceable agreement to defend the Cobb action.
Michaelian’s principal contention is that the first amended complaint sufficiently alleged an enforceable agreement, consisting of State Fund’s reservation of rights letter dated July 21, 1994, “as modified” by the October 4, 1994, letter from Michaelian’s counsel, and that State Fund materially breached the agreement by not paying all defense costs incurred after September 30, 1993. Michaelian argues that the State Fund letter constituted an offer, the Michaelian letter was a counteroffer, and State Fund’s later payment of some defense costs was an acceptance.
The attempt to transform State Fund’s unilateral assumption of the defense under a reservation of rights into an enforceable bilateral contract runs counter to California law.
Our state’s law has long recognized that a liability insurer can, by appropriate action, provide its insured a defense without waiving its claim of noncoverage of the policy. (See
Gray
v.
Zurich Insurance Co., supra,
“Thus the insurer can avoid being bound by the judgment against the insured if it secures a nonwaiver agreement from the insured (e.g., Coolidge v. Standard Acc. Ins. Co. [(1931)]114 Cal.App. 716 , 719-720 . . . ; Sears v. Illinois Indemnity Co. [(1932)]121 Cal.App. 211 , 212-213, 227) ... or makes an adequate reservation of rights. (E.g., Bear Film Co. v. Indemnity Ins. Co. [(1937)]22 Cal.App.2d 520 , 523-524 . . . ; see McDanels v. General Ins. Co. [(1934)]1 Cal.App.2d 454 , 458-461 . . . .)
“The distinction between a nonwaiver agreement and a reservation of rights has been stated as follows: \ . . A nonwaiver agreement is a bilateralcontract, normally in writing, entered into by the assured and the insurer after the accident, providing that the insurer will defend the tort suit while reserving its right to assert nonliability under the policy at a later date. . . . A reservation of rights is very similar to a nonwaiver agreement, and it is subject to the samе limitations and restrictions. It differs in being less formal than the nonwaiver and less tied to strict contract principles. The insurer need only notify, or attempt to notify, the assured that it is conducting the investigation and defense of the tort claim under a reservation of the right to assert policy defenses at a later time, and the assured’s silence will usually be deemed acquiescence. Courts have in general been fairly liberal in implying reservations.’ (Note (1955) 68 Harv.L.Rev. 1436, 1446, 1447; fns. omitted.)” (Val’s Painting & Drywall, Inc. v. Allstate Ins. Co., supra, 53 Cal.App.3d at p. 586 .)
The question here is whether Michaelian’s letter of October 4, 1994, expressing disagreement with State Fund’s claimed right to reimbursement of defense costs which it might pay, negates State Fund’s right to withdraw from the defense at any time without liability to pay defense costs incurred before the withdrawal.
In Val’s Painting & Drywall, Inc. v. Allstate Ins. Co., supra, 53 Cal.App.3d at pages 586-587, the court discussed situations in which the insured refuses to consent:
“[I]t has been said that if the insured expressly refuses to consent to a reservation of rights, a unilateral reservation is ineffective; the insurer must make an election whether to defend or refuse to defend. 7A Appleman, Insurance (1962) § 4694, pp. 546-547; Note [(1950)] 2 Stan.L.Rev. 387-388; Roos, [The Obligation to Defend and Some Related Problems (1961)] 13 Hastings L.J. [206,] 207.)
“In California, however, the theory that by defending the suit an insurer ‘waives’ its right to claim noncoverage rests upon the doctrine of estoppel. There must be a showing that the insurer either intentionally relinquished a known right, or acted in such manner as to cause the insured reasonably to believe the insurer had relinquished such right, and that the insured relied upon such conduct to his detriment. [Citations.]” 6
Michaelian does not argue that State Fund intеntionally waived its right to withdraw from defense of the Cobb suit and assert its noncoverage claims at
Even if we assume the first three elements of estoppel may be inferred from the facts alleged, there is no showing Michaelian’s reliance on State Fund’s assumption of the Cobb defense caused him injury. If, as we gather from Michaelian’s argument, the suit he filed against State Fund in July 1994 was to obtain a declaration of rights and a judgment enforcing rights he claimed under the Policy regarding the Cobb action, together with damages for bad faith breach of the Policy, his suit was doomed tо failure. As we have concluded above, State Fund never had a duty under the Policy to indemnify or defend Michaelian in the Cobb action. It follows that Michaelian had no viable cause for breach of the implied covenant of good faith and fair dealing.
(Waller
v.
Truck Ins. Exchange, Inc., supra,
In
Insurance Co. of the West
v.
Haralambos Beverage Co.
(1987)
Michaelian did not plead sufficient facts justifying a conclusion that State Fund was estopped from withdrawing from defense of the Cobb action at any time without further liability.
Assuming traditional contract principles applied to Michaelian’s claim, it is still not sustainable for at least two reasons. First, we cannot agree with Michaelian that State Fund’s letter of July 21, 1994, was an “offer,” except pоssibly as to one matter which has no bearing in this case.* **
8
Both in form and content the letter was a notification of State Fund’s decision to provide a defense subject to various conditions and with a “complete reservation of
In addition, on the facts alleged, Michaelian has not shown there was any sufficient consideration for State Fund’s conditional agreement to defend.* * 9
Michaelian argues the consideration requirement is met in three respects. First, he relies on Civil Code section 1614 which provides that “[a] written instrument is presumptive evidence of a consideration.” The term “written instrument” as it appears in that statute, however, does not apply to letters, but only to more formal legal documents.
(Weisbrod
v.
Weisbrod
(1938)
Second, Michaelian argues that he gave consideration by forbearing from pursuit of his bad faith action against State Fund, at least until after State Fund withdrew from the Cobb case defense. Forbearance to sue on a claim, extension of time, or any other giving up of a legal right may be sufficient consideration for a promise. (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 214, p. 223.) It is not sufficient, however, when the claim is wholly invalid or worthless. (Id. at §§ 223, 224, pp. 230-231.) As Michaelian never had any valid claim to a defense from State Fund under the Policy, his alleged forbearance does not constitute consideration.
Likewise, Michaelian’s third argument, that the consideration element was supplied through the doctrine of promissory estoppel, fails. While California law recognizes the doctrine of promissory estoppel, the party claiming it must plead all facts establishing the doctrine’s elements.
(Smith
v.
City and County of San Francisco
(1990)
3. The other causes of action fail to allege sufficient facts to withstand demurrer.
Michaelian’s other causes of action allеged negligence, fraud, intentional and negligent infliction of emotional distress, and constructive trust theories. Those causes all depend on the same facts from which Michaelian argues State Fund owed a duty to defend, either under the Policy or under the purported agreement.
Because Michaelian does not allege any additional facts establishing any legal duty owed by State Fund, the negligence cause fails. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60 [a legal duty to use due care is the first element of a negligence cause].) Similarly, the negligent infliction of emotional distress cause founders on the lack of facts showing a legal duty.
(Burgess
v.
Superior Court
(1992)
The seventh cause of action alleges that when State Fund executed and delivered “the Agreement,” it falsely аnd fraudulently represented it would accept the tender of defense of the Cobb action and reimburse fees and costs related to the defense, but it then had no intention of performing. The complaint does not, however, allege any representations other than those included in the reservation of rights letter. That letter expressly notified Michaelian the Cobb action was not covered by the Policy and State Fund reserved all of its rights under the Policy, and Michaelian’s claim of fraud is inconsistent with the letter’s contents. A fraud cause of action must be pleaded “with particularity.”
(Committee on Children’s Television, Inc.
v.
General Food Corp.
(1983)
Although the amended complaint alleges Michaelian sustained injury to his health, strength, and emotional condition, it failed to adequately allege a cause of action for intentional infliction of emotional distress. The elements of a cause on that theory are (1) extreme and outrageous conduct that is directed at the insured, (2) the intention to cause, or acting in conscious disregard of the probability of causing, emotional distress, (3) severe emotional distress, (4) actual and proximate cause of the emotional
Michaelian’s 10th cause of action alleges State Fund fraudulently failed and refused to convey payments to Michaelian and thus holds the money as a constructive trustee for Michaelian’s benefit. A cause of action for constructive trust is not based on the establishment of a trust, but consists of fraud, breach of fiduciary duty or other act which entitles the plaintiff to some relief. Relief, in a proper case, may be to make the defendant a constructive trustee with a duty to transfer to the plaintiff.
(In re Marriage of Buford
(1984)
Because Michaelian did not allege facts showing any fraud or breach of any fiduciary duty, he is not entitled to relief under a constructive trust theory.
Disposition
Judgment affirmed. Costs to respondent.
Ardaiz, P. J., and Moran, J., * concurred.
On December 11, 1996, the opinion was modified to read as printed above.
Notes
A11 facts are drawn from the first amended complaint except for those alleged in the complaint in Fresno County Superior Court, case No. 494150-6, entitled Cobb v. Michaelian. The trial court took judicial notice of the latter pleading pursuant to Evidence Code section 452, subdivision (d).
This complaint was not included in the record on appeal.
In his opening brief on appeal, Michaelian states that the $18,212 was only a part payment of total defense costs incurred of approximately $113,000. That fact is not specifically alleged in the first amended complaint, but under the legal analysis which follows it would not affect the result we reach.
Michaelian has not shown what other facts, if any, he could allege. Thus, we need not decide whether the trial court may have abused its discretion in denying leave to amend.
Insurance Code section 533 states in pertinent part, “An insurer is not liable for a loss caused by the wilful act of the insured. . . .”
However, coverage cannot be
established
under an insurance policy by estoppel or waiver. “ ‘ “ ‘The rule is well established that the doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, are not available to bring within the coverage of a policy risks not covered by its terms. . . .”” ”
(Manneck
v.
Lawyers Title Ins. Corp.
(1994)
In their October 4, 1994, letter to State Fund, Michaelian’s attorneys stated the belief that “State Finid has prejudiced [Michaelian] by, among other things, making it impossible for [Michaelian] to quickly settle [the Cobb] case.” No facts supporting this conclusion were included in the letter or alleged in the first amended complaint below. To the extent the statement may have been referring to the period before State Fund’s letter of July 21, 1994, it is irrelevant on the issue now being considered. If Michaelian meant to contend that State Fund’s assumption of the defense somehow interfered with his ability to settle the Cobb case
The one matter as to which State Fund’s letter might be considered an offer is the asserted right to reimbursement of any sums paid by State Fund in defense of the Cobb action. Several reported cases have considered such a claim.
It seems clear that an insurer that defends under a reservation of rights is not entitled to reimbursement as a matter of law.
(Insurance Co. of the West
v.
Haralambos Beverage Co., supra,
Two federal district courts, applying their interpretation of California law, allowed insurers reimbursement of defense costs from the insured when the insurer reserved the right to seek reimbursement. In
Omaha Indem. Ins. Co.
v.
Cardon Oil Co.
(N.D.Cal. 1988)
In
Reliance Ins. Co.
v.
Alan, supra,
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.