JEFFREY PRANG, as Los Angeles County Assessor, Plaintiff and Appellant, v. ASSESSMENT APPEALS BOARD NO. 6 OF THE COUNTY OF LOS ANGELES, Defendant and Respondent; SEAN HOOSHANG NAMVAR, et al., Real Parties in Interest and Respondents.
B342735, B345399
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 5/29/26
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. (Los Angeles County Super. Ct. No. 23SMCP00421)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from a judgment of the Superior Court of Los Angeles County, Mark A. Young, Judge. Affirmed in part, reversed in part, and remanded with directions.
No appearance for Defendant and Respondent.
Law Office of Bruce Altschuld and Bruce E. Altschuld for Real Parties in Interest and Respondents.
Plaintiff and Appellant, Los Angeles County Assessor Jeffrey Prang (the Assessor), appeals from a judgment denying his petition for a writ of administrative mandamus under
We conclude that the trial court erred by sustaining the Owners’ demurrer to the Assessor’s administrative mandate claim on statute of limitations grounds. We further conclude that the trial court properly denied the Assessor’s traditional mandate claim on the merits at trial. Accordingly, we affirm the judgment as to the traditional mandate claim, reverse the judgment as to the administrative mandate claim, and remand for a trial on the merits of the latter claim.
A. Property taxes and assessment appeals boards
In 1978, Proposition 13 amended the California Constitution to limit real property taxes to 1 percent of a property’s base year value adjusted annually by an inflation factor not to exceed 2 percent of the prior year’s value. [Citations.] Proposition 13 set the base year value used to determine each year’s taxes at the value the local assessor set on the 1975-1976 tax bill. (William Jefferson & Co., Inc. v. Orange County Assessment Appeals Bd. No. 2 (2014) 228 Cal.App.4th 1, 9 (William Jefferson).) Since the passage of Proposition 13, an assessor may reassess real property only if one of three triggering events has occurred—namely, (1) when the property has been purchased, (2) when the property is newly constructed, or (3) when a change in ownership has occurred. (Prang v. Los Angeles County Assessment Appeals Bd. No. 2 (2020) 54 Cal.App.5th 1, 12 (Prang).)
Upon reassessment, the base year value is the fair market value on the date of the purchase or change in ownership. (
The California Constitution establishes local boards of equalization (either a county assessment appeals board or the board of supervisors) to hear appeals from decisions of the local tax assessor. [Citations.] The local board may hear appeals
B. Believers, LLC, purchased the Property in April 2007 and transferred it to the Owners in November 2007. In 2010, the Board approved the Owners’ and the Assessor’s stipulation to an assessed value of $3.774 million as of April and November 2007.
On April 20, 2007, Believers, LLC, purchased the Property for $3.7 million. On November 21, 2007, Believers transferred the Property to the Owners by grant deed, which declared: The grantors and the grantees in this conveyance are comprised of the same parties who continue to hold the same proportionate interests in the property . . . .
The Assessor reassessed the Property’s value after the April 2007 purchase and reassessed it again after the November 2007 transfer. Although the record contains conflicting information regarding the precise values determined by the Assessor, it appears that the Assessor-determined values were no lower than $6.8 million and no higher than $7,760,343.
In 2009, the Owners applied to the Board to change the Property’s enrolled value from $7,760,343 (as identified on the application) to $3.7 million, on the grounds that the value had declined or that the November 2007 transfer had not been a change of ownership. At the hearing on the application in March
The Assessor’s representative, Mark McNeil, joined in Salari’s request and represented that the Assessor would make a correction as far as the 4-20-07 date (i.e., the April 2007 purchase date) and also make a recommendation regarding the November 2007 transfer date. McNeil further represented that the value . . . that the Board is deciding for [the November 2007 transfer date] is also going to be applied to the April 20th [purchase] date.
The Board agreed to invoke its jurisdiction to decide the issue of whether the Assessor incorrectly assessed the value upon a change of ownership.2
Scott Schenter, an appraiser employed by the Assessor, testified that the Assessor’s recommended 2008 base year value was $3.7 million, based on the $3.7 million purchase price in April 2007. Schenter testified that the purchase was made through an open-market sale and that comparable real estate transactions supported the purchase price.3 Schenter’s appraisal
worksheet, which the Board received in evidence, identified three allegedly comparable transactions, each of which occurred more than 90 days after the April 2007 purchase and the November 2007 transfer. No participant in the 2010 hearing addressed whether those transactions were too temporally remote to qualify for the Board’s consideration. (See
Through Salari, the Owners stipulated to the Assessor’s recommended base year value. The Board approved the parties’ stipulation and ordered the Assessor to enroll a 2008 base year value of $3.774 million, based on the stipulated value of $3.7
C. In 2012, the Assessor determined that the November 2007 transfer was not a change of ownership and changed the 2008 base year value to the value that the Assessor had determined before the Board’s 2010 decision. The Owners applied to the Board to correct the value back to the stipulated value approved by its 2010 decision.
In 2012, Salari, McNeil, and Schenter were charged with various criminal offenses related to the Property and other properties (discussed in more detail below). A few weeks after Schenter was charged, the Assessor determined that the November 2007 transfer was not a change of ownership, based on the grant deed’s declaration that the grantors and grantees were the same parties who continued to hold the same proportionate interests.4
Based on that determination, the Assessor reversed the 2010 reassessment of the Property’s value as of the November 2007 transfer, making the April 2007 purchase the controlling change of ownership for purposes of determining the 2008 base year value. In 2012, the Assessor sent the Owners an adjusted property tax bill based on a change of the assessed value from
The Owners (no longer represented by Salari) applied to the Board to correct the Assessor’s 2012 redetermination of the April 2007 value. Between 2013 and 2022, the Board granted the Assessor’s requests to continue the hearing based on the pending criminal proceedings against Salari, McNeil, and Schenter. In 2022, although the criminal proceedings remained pending, the Board scheduled a February 2023 hearing on the Owners’ application.
The administrative record contains no written arguments by the Assessor. During a 2014 hearing at which the Board granted a continuance, the Assessor’s representative made the following representations to the Board: [T]he conclusion of the Assessor is that there was no reassessable event [on] November 21, 2007, which, in our view, means that the pertinent change in ownership date for 2007 was the date of April 20th, 2007 . . . . [¶] . . . [¶] The Assessor reviewed the propriety of making a change as of April 20th, 2007, de novo, the Plaintiff’s [sic] independent discretion, and . . . determined that the value change that Mr. McNeil agreed to as part of that original application is not appropriate and should not be rolled over as to that earlier change in value date [i.e., April 20, 2007].
In a 2020 brief to the Board, the Owners argued that the Assessor’s 2012 redetermination of the April 2007 value was void because it contradicted the Board’s 2010 decision, and that notwithstanding the pending criminal proceedings against McNeil, Schenter, and Salari, the Assessor had offered no evidence that the Board’s 2010 decision was obtained by fraud.
At the February 2023 evidentiary hearing, the Board invited oral argument from the Assessor regarding why it should not adhere to its 2010 decision that approved the parties’ stipulation to the $3.774 million value then recommended by the Assessor.
The Assessor argued that the Board’s 2010 decision determined the Property’s value only for the November 2007 transfer, not for the April 2007 purchase. The Assessor acknowledged that McNeil represented that the value would also apply to April 2007, but argued that McNeil’s representations did not qualify as a stipulation. In opposition, the Owners argued that McNeil stipulated that the $3.7 million value applied to both April 2007 and November 2007.
The Assessor also argued that Schenter’s testimony and appraisal worksheet did not support the Board’s approval of the $3.7 million stipulated value because the allegedly comparable sales that Schenter identified occurred more than 90 days after the April 2007 purchase and November 2007 transfer and were therefore inadmissible under
E. The Assessor petitioned the trial court for a writ of administrative or traditional mandamus. The trial court sustained a demurrer on statute of limitations grounds to the administrative mandate claim, but overruled it as to the traditional mandate claim.
In July 2023, within six months of the Board’s February 2023 decision (but more than 90 days after it), the Assessor filed a petition for a writ of administrative mandamus. After the trial court sustained the Owners’ demurrer to the original petition with leave to amend, the Assessor filed the operative first amended petition, which sought either a writ of administrative mandamus under
The trial court again sustained the Owners’ demurrer to the Assessor’s administrative mandate claim, this time without leave to amend, but overruled the demurrer as to the traditional
F. The trial court denied the Assessor’s traditional mandate claim on the merits at trial, concluding that the Assessor failed to show the Board abused its discretion.
In his trial brief, the Assessor argued that the Board abused its discretion by failing to exercise its inherent equitable authority to set aside its 2010 decision on the ground that the decision had been obtained by extrinsic fraud. The Assessor argued that the trial court should issue a writ of traditional mandamus directing the Board to exercise that authority and to vacate its 2010 decision.
In support of his fraud argument, the Assessor requested judicial notice of several documents from the pending criminal proceedings against Schenter, McNeil, and Salari (none of which documents were in the administrative record before the Board). The trial court did not rule on the Assessor’s request for judicial
The Assessor requested judicial notice of a 60-count felony complaint filed in 2012 in People v. Schenter, Los Angeles County Superior Court no. BA397710. One count alleged that between October 2010 and January 2011 (after the Board’s March 2010 decision), Schenter stole, destroyed, and/or falsified a transfer value multi-entry form pertaining to the Property. The Assessor also requested judicial notice of a document from the superior court’s website indicating that the case against Schenter remained pending and had not yet proceeded to a preliminary hearing at that time.
Next, the Assessor requested judicial notice of a 32-count felony complaint filed in 2012 in People v. Rodriguez, Los Angeles County Superior Court no. BA403666. One count alleged that at the time of the Board’s 2010 hearing and decision, McNeil, Salari, and Juan Renaldo Rodriguez (also known as John Noguez), who was a special assistant to the Assessor at that time, misappropriated a $47,000 property tax refund pertaining to the Property.6
Finally, the Assessor requested judicial notice of Schenter’s testimony, over four days in April 2023, at a
In the Owners’ trial brief, they argued that Schenter’s alleged fraud did not support the Assessor’s challenge to the Board’s 2023 decision because the Assessor had not raised the fraud issue or produced evidence of fraud before the Board. They further argued that the Assessor’s 2012 attempt to correct the Property’s assessed value was untimely under
After trial, at which the parties offered no additional evidence, the court issued a minute order denying the Assessor’s petition for a writ of traditional mandamus on the merits. The trial court concluded that the Assessor failed to show the Board abused its discretion, for two reasons. First, the court found that the Assessor’s cited authority was insufficient to establish that the Board had inherent equitable authority to set aside its 2010 decision on the ground of extrinsic fraud, or a ministerial duty to do so. Second, the court concluded that the Assessor’s 2012 attempt to correct the stipulated $3.774 million value was untimely under
Before the trial court entered judgment, the Assessor filed a notice of appeal from the forthcoming judgment, and attached
DISCUSSION
A. We have jurisdiction over the Assessor’s appeals.
The Owners argue that we lack jurisdiction over the Assessor’s consolidated appeals because the Assessor’s second notice of appeal was untimely. They do not address the Assessor’s first notice of appeal. For the reasons explained below, we conclude that we have jurisdiction over both appeals.
We exercise our discretion to treat the Assessor’s first notice of appeal from the judgment, which he prematurely filed before the judgment was entered (but after the trial court issued its minute order denying his petition), as if it had been timely filed immediately after the judgment’s entry. (Cal. Rules of Court, rule 8.104(d)(2); Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262, 275, disapproved on another ground by Grande v. Eisenhower Medical Center (2022) 13 Cal.5th 313.) As noted, the Owners do not address the first notice of appeal, much less argue that we should not exercise our discretion in that manner.
Further, we conclude that the Assessor’s second notice of appeal was timely filed after entry of judgment. [T]he time to appeal in administrative mandate proceedings begins with the entry of judgment or service of notice of entry of judgment, not with the [prejudgment] filing of an order or other ruling, or service of notice of filing of such a ruling, even where an appellate court might deem such a [prejudgment] ruling
On December 20, 2024, the trial court entered judgment. The record does not indicate that either the superior court clerk or a party served notice of entry of judgment or a file-endorsed copy of the judgment. Thus, the Assessor’s time to appeal from the judgment expired 180 days after the judgment’s entry, on June 18, 2025. (Cal. Rules of Court, rule 8.104(a); Meinhardt, supra, 16 Cal.5th at p. 657.) The Assessor timely filed his second notice of appeal within the 180-day deadline, on March 28, 2025.8
In short, we conclude that the Assessor’s first and second notices of appeal were both timely and that we have jurisdiction over the appeals.
B. The trial court erred by sustaining the Owners’ demurrer to the Assessor’s petition for a writ of administrative mandamus.
The trial court sustained the Owners’ demurrer to the Assessor’s administrative mandate claim based on the court’s conclusion that the claim was untimely under
The Board’s 2023 decision is not a decision suspending, demoting, or dismissing an officer or employee, revoking, denying an application for a permit, license, or other entitlement, imposing a civil or administrative penalty, fine, charge, or cost, or denying an application for any retirement benefit or allowance. (
Rather, as the trial court concluded with respect to the Assessor’s traditional mandate claim, the administrative mandate claim was timely under
The Owners erroneously imply that
The Owners also rely on
Accordingly, we conclude that the trial court erred by sustaining the Owners’ demurrer to the Assessor’s administrative mandate claim. Some authority indicates that the erroneous sustaining of a demurrer to a single cause of action is reversible per se (i.e., not subject to review for harmless error), even if other causes of action were resolved against the plaintiff at trial. (Deeter v. Angus (1986) 179 Cal.App.3d 241, 251; but see Curtis v. Twentieth Century-Fox Film Corp. (1956) 140 Cal.App.2d 461, 465 [order sustaining demurrer to plaintiff’s second count with leave to amend, which leave plaintiff did not exercise, did not prejudice plaintiff on appeal from judgment
Even assuming, arguendo, the error is subject to review for harmless error, the record shows a reasonable probability that the Assessor would have obtained a more favorable result if the trial court had allowed the administrative mandamus claim to proceed to trial on the merits. At trial, the court remarked that the Assessor’s allegations of fraud before the Board raised an important issue, but that traditional mandamus under
We observe that in administrative mandate proceedings, a trial court has discretion to consider evidence outside the administrative record (extra-record evidence) that did not exist at the time the agency made its challenged decision, and to remand to the agency for the agency to reconsider its decision in light of such evidence. (Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1594-1595 (Fort Mojave); see also
Because we conclude that the sustaining of the demurrer was prejudicial error, we will reverse the judgment as to the administrative mandate claim and remand to the trial court for a trial on that claim’s merits. We now turn to the traditional mandate claim.
C. The trial court properly denied the Assessor’s petition for a writ of traditional mandamus.
Traditional mandamus will lie to correct abuses of discretion. (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654 (County of Los Angeles).) In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. [Citation.] A court must ask whether the public agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.9 (Ibid.)
The Assessor argues that the Board exceeded its jurisdiction and therefore abused its discretion by failing to
To provide context for the Assessor’s arguments and guidance for the proceedings on remand, we first consider the scope of the Board’s inherent authority to reconsider its 2010 decision. We then address his arguments on the merits of his traditional mandate claim.
1. The Board has inherent authority to set aside its 2010 decision if the decision exceeded its jurisdiction.
Generally, “unless permitted by statute, an administrative agency may not reopen or reconsider an adjudicative decision.” (Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Bds. (2004) 121 Cal.App.4th 29, 39 (Helene Curtis).) “But this rule does not preclude an agency from rescinding a decision that exceeded its jurisdiction.” (Id. at p. 39; accord, 1041 20th Street, LLC v. Santa Monica Rent Control Bd. (2019) 38 Cal.App.5th 27, 45 (1041 20th Street) [“the doctrine of administrative finality does not apply when an agency acts beyond its authority”].)
In early cases, our Supreme Court held that “an agency may be without power to change a prior decision where there is no statutory authority to rehear or reopen the matter.” (California Teachers Assn. v. Butte Community College Dist. (1996) 48 Cal.App.4th 1293, 1303 (Butte), citing Olive Proration etc. Com. v. Agri. etc. Com. (1941) 17 Cal.2d 204, 209 (Olive Proration).) “However, our Supreme Court later said: ‘Implicit
As the Supreme Court explained in Aylward: “While a board may have exhausted its power to act when it has proceeded within its powers, it cannot be said to have exhausted its power by doing an act which it had no power to do or by making a determination without sufficient evidence. In such a case, the power to act legally has not been exercised, the doing of the void act is a nullity, and the board still has unexercised power to proceed within its jurisdiction.” (Aylward, supra, 31 Cal.2d at p. 839; accord, Helene Curtis, supra, 121 Cal.App.4th at pp. 39-40.)
“The power enunciated in Aylward is not dependent on the existence of any statutory authority but applies where there is no statutory basis to reopen a prior decision.” (Butte, supra, 48 Cal.App.4th at p. 1305.) In other words, it is an inherent power.10 (See In re Fain (1976) 65 Cal.App.3d 376, 389 (Fain)
Here, without addressing whether it had inherent authority to reconsider its 2010 decision, the Board concluded that the decision remained binding under State Board of Equalization Rule 326 (Rule 326).11 An agency “may not adopt an administrative rule which diminishes its inherent power to reconsider its actions where the Legislature has not done this in the enabling [statutory] law.” (Fain, supra, 65 Cal.App.3d at p.
Absent any statute indicating that the Legislature intended to eliminate the Board’s inherent authority to reconsider a decision that exceeded its jurisdiction, we conclude that Rule 326 does not eliminate that authority or preclude its exercise. (Fain, supra, 65 Cal.App.3d at p. 391; cf. Flightsafety Internat. Inc. v. Assessment Appeals Bd. (2003) 105 Cal.App.4th 620, 628, fn. 12 [Rule 326 cannot supersede a statute].)
2. We need not decide whether the Board would have jurisdiction to set aside its 2010 decision because of extrinsic fraud because, assuming it did, the Assessor failed to show that the Board abused its discretion by failing to set aside that decision on the ground of extrinsic fraud.
Courts have inherent equitable authority to set aside void judgments. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 43.) Separately, courts have inherent equitable authority to set aside judgments that were obtained by extrinsic fraud. (Id. at p. 47; see also California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 215-216 (Hoehn); 8 Witkin, Cal. Procedure (6th ed. 2026) Attack on Judgment in Trial Court, § 222, pp. 817-818.)
Relying on Mullen v. Department of Real Estate (1988) 204 Cal.App.3d 295 (Mullen), the Assessor argues that administrative agencies have the same inherent equitable authority as courts to set aside an otherwise final decision on the ground of extrinsic fraud.
In arguing that the Board inadequately considered the Assessor’s evidence of extrinsic fraud, the Assessor cites no documents in the administrative record other than the transcript of the 2010 hearing and Schenter’s appraisal worksheet received as an exhibit at that hearing. Assuming, arguendo, that Schenter’s representations in those documents were erroneous, those documents alone do not address whether Schenter or McNeil, the Assessor’s representative who stipulated to the $3.774 million value, knew that the representations were erroneous and intentionally deceived the Board in obtaining its approval of the stipulated value.
The Assessor primarily relies on extra-record evidence, i.e., Schenter’s testimony at a preliminary hearing in a separate criminal case against McNeil, Salari, and Noguez. However, the Assessor failed to properly present Schenter’s testimony for our consideration on appeal. Although the Assessor asked the trial court to take judicial notice of Schenter’s testimony, the trial court did not rule on the request. The Assessor does not argue that the trial court erred by failing to take judicial notice. Nor does he ask this court to take judicial notice of Schenter’s testimony, either in his appellate briefs or, as required, in a separate motion. (
The Assessor does not argue that Schenter’s testimony falls within any exception to the general rule prohibiting consideration of extra-record evidence in traditional mandamus proceedings. Accordingly, we decline to judicially notice Schenter’s testimony on our own motion.
In short, we conclude that the Assessor failed to show, at trial on his traditional mandate claim, that the Board abused its discretion by failing to set aside its 2010 decision on the ground of extrinsic fraud. As noted, in administrative mandate proceedings, a trial court has broader discretion than in traditional mandate proceedings to consider extra-record evidence that did not exist at the time the agency made its challenged decision. (Fort Mojave, supra, 38 Cal.App.4th at pp. 1594-1595;
3. The Assessor failed to show that his 2012 redetermination corrected only a nonjudgmental error and was thus exempt from Revenue and Taxation Code section 51.5’s four-year deadline.
As an additional ground for concluding that the Board did not abuse its discretion, the trial court concluded that the Assessor’s attempt to correct the 2008 base year value was untimely under
“An error or an omission [in the determination of a base year value] which involves the exercise of an assessor’s judgment as to value may be corrected only . . . within four years after July 1 of the assessment year for which the base year value was first established.” (
“But if the assessor is seeking to reassess the property for reasons ‘not involv[ing] the exercise of [the] assessor’s judgment as to value,’ then there is no time limit and the assessor may ‘correct’ the error by reassessing the property ‘in any assessment year in which the error or omission is discovered.’ ” (Prang, supra, 54 Cal.App.5th at p. 13, quoting
Here, the Assessor argued in the trial court that the four-year deadline for correcting judgmental errors did not apply to his 2012 redetermination because he corrected only a nonjudgmental error regarding whether the November 2007 transfer was a change of ownership. He renews that argument on appeal. However, as explained below, the Assessor’s 2012 redetermination also sought to correct the former Assessor’s 2010 stipulation that the Property’s value as of April 2007 was $3.7 million.
At the 2010 hearing, the former Assessor (through McNeil) stipulated to correct the value for the April 2007 purchase to $3.7 million. He further stipulated that the $3.7 million value would apply to both the April 2007 purchase and the November 2007 transfer. The Board’s 2010 decision approved the stipulation as to both dates.13
Because the Board’s 2010 decision approved the same $3.774 million value for both the April 2007 and November 2007 dates, we disagree with the Assessor’s assertion that the Board’s 2023 decision upholding the $3.774 million value “depends on an implicit assumption . . . that there was a change in ownership [and resulting reassessment] in November 2007.” For the same reason, we disagree with the Assessor’s argument that in correcting the $3.774 million value in 2012, he corrected only his predecessor’s nonjudgmental error in determining that a change of ownership occurred in November 2007.
Rather, the Assessor also sought to correct his predecessor’s 2010 stipulation. At the 2014 Board hearing, the Assessor’s representative explained: “The Assessor reviewed the propriety of making a [value] change as of April 20th, 2007, de novo, the [Assessor]’s independent discretion, and . . . determined that the value change that Mr. McNeil agreed to as part of that original application is not appropriate and should not be rolled over as to that earlier change in value date [i.e., April 20, 2007].”
Thus, the Assessor sought to correct the April 2007 “value change” that his predecessor stipulated to in 2010. The Assessor does not address whether his predecessor’s alleged error in stipulating to the $3.774 million value involved an exercise of his predecessor’s judgment as to value. The trial court likewise did
We express no opinion regarding whether the former Assessor’s alleged error in stipulating to the $3.774 million value involved an exercise of judgment as to value, such that the Assessor’s 2012 correction to that error was subject to
Our opinion does not foreclose the possibility that the trial court on remand, or the Board on a potential remand from the trial court, may set aside the Board’s 2010 decision and, by extension, the former Assessor’s 2010 stipulation. Regulations require the Board to act only on “proper evidence” (
In his trial brief and on appeal, the Assessor did not argue that the Board’s reliance on those sales rendered its decision a “determination without sufficient evidence” (Aylward, supra, 31 Cal.2d at p. 839), or that the Board abused its discretion by failing to set aside its 2010 decision on that ground. We express no opinion regarding those issues, or how
DISPOSITION
The judgment is affirmed with respect to the Assessor’s petition for a writ of traditional mandamus under
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.