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Thomas Pratt v. Board of Pharmacy et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


March 29, 2011

THOMAS PRATT, PLAINTIFF AND APPELLANT,
v.
BOARD OF PHARMACY ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. 05AS02781)

The opinion of the court was delivered by: Mauro ,j.

Pratt v. Bd. of Pharmacy CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After plaintiff Thomas Pratt failed the pharmacist licensing examination three times, he sued the California Board of Pharmacy and other defendants for racial discrimination, fraud and breach of contract. The trial court sustained defendants' demurrers without leave to amend on the ground, among others, that Pratt asserted the same claims in a prior federal lawsuit and that the federal court's final judgment on the merits now precludes Pratt from asserting the same claims again. Among Pratt's contentions on appeal is the assertion that defendants waived the defense of "res judicata," or claim preclusion, when they agreed to stay the state court case while the federal case was pending and that Pratt asserted a new cause of action in the state court case.

Our review focuses on whether Pratt asserted the same "primary right" in both cases. We conclude that he did and that he forfeited any arguments to the contrary on appeal. We also conclude that defendants did not waive the defense of res judicata and that, as a result, Pratt is precluded from asserting the same primary right again in this case. Accordingly, it is unnecessary to address Pratt's other challenges to the trial court ruling. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Pratt took the Board of Pharmacy licensing examination three times -- in June 2002, January 2003 and June 2003 -- seeking to become a pharmacist. On each exam he passed the multiple choice portion but failed the essay portion.

In October 2004, Pratt initiated a lawsuit in the federal Central District of California. Pratt filed his first amended complaint in that case on November 22, 2004, naming as defendants, among others, the Board of Pharmacy and its officers Virginia Herold and Patricia Harris (collectively the Board defendants), and Applied Measurement Professionals, Inc. (AMP), a consulting firm that advised the Board on the content and grading of the exam. Pratt alleged that, according to statistics, the exam and grading scheme used by the Board had an adverse impact on African Americans in violation of 42 United States Code section 1983 and that the grading scheme used violated his right to procedural and substantive due process, as well as his right to equal protection under the Fourteenth Amendment to the United States Constitution. Pratt sought a declaration deeming him to have passed the examination and a declaration that Harris and Herold violated 42 United States Code section 1983. Pratt also sought damages from AMP, alleging it negligently designed the test.

In December 2004, Pratt initiated a similar complaint in the Los Angeles County Superior Court against the Board defendants and others. Pratt alleged that the exam and grading scheme had an adverse impact on African Americans in violation of 42 United States Code section 1983, Government Code section 12944, subdivision (a), and Civil Code sections 51 and 52. In addition, he asserted the test was negligently designed and did not meet mandatory criteria. Pratt sought damages, a declaration that the test was invalid, and a declaration that he was deemed to have passed the examination and was entitled to licensure.

The federal court action was transferred to the federal Eastern District of California in February 2005. Then, in March 2005, the state court action was transferred to the Sacramento Superior Court, and it was stayed at the request of the parties pending resolution of the federal action.

AMP moved for summary judgment in the federal action, and the federal district court granted the motion in January 2006. The district court observed that pursuant to a contract entered in 2000 between AMP and the Board, AMP performed a study of California pharmacist job activities that led to creation of a "Detailed Content Outline" which set forth the material to be covered in the pharmacy licensing exam. Pratt alleged that part 2 of the exam was not based on any reliable methodology or content outline and that AMP breached its duty to rectify the unreliability of the exam. AMP used the "Angoff method" to score part 2 of the exam, and Pratt asserted that application of the procedure was improper. The district court found that AMP presented evidence demonstrating the reliability of the methodology used and that Pratt failed to present any evidence that AMP's use of this methodology was negligent or that the testing method was unreliable. The district court denied Pratt's motion for a continuance to obtain further discovery responses because the discovery he sought was not essential to resist AMP's motion for summary judgment.

Defendants Harris and Herold also separately moved for summary judgment in the federal action. According to the district court, Pratt originally alleged that the grading methodology had a disparate impact on African Americans because the pass rate of Caucasians was significantly greater than the pass rate of racial minorities. But the Board did not compile or keep statistics of pass rates based on race; instead, Pratt relied on statistics regarding the pass rate of "foreigners," which did not provide information on specific racial groups. Pratt conceded that he did not know how many African Americans passed or failed any of the exams. Confronted with his lack of evidence, Pratt asserted for the first time in his opposition to summary judgment that defendants violated the law by failing to compile or keep statistics of pass rates based on race. Pratt presented expert testimony that the Board's failure to compile or keep such statistics violated Equal Employment Opportunity Commission (EEOC) Guidelines.

The district court rejected Pratt's new contention, determining that Pratt failed to timely disclose his expert witness and did not plead that defendants had an affirmative duty to compile statistics on discriminatory impact. The district court added that even if Pratt had pleaded such a theory, he failed to identify the specific guidelines that defendants allegedly violated, failed to cite authority for his new theory, and made no showing that he was prejudiced by the defendants' failure to keep statistics. According to the district court, "[t]he failure to keep statistics does not equate to a showing that Pratt was wrongfully denied a passing score or licensure, or that defendants intentionally discriminated against him, because of his race." The district court granted Harris and Herold's motion for summary judgment.

Pratt filed an appeal and, in March 2008, the Ninth Circuit Court of Appeals affirmed the judgment in favor of the Board defendants and AMP. The Ninth Circuit held that the district court did not abuse its discretion when it refused to continue AMP's motion for summary judgment; Pratt failed to demonstrate why a continuance for further discovery was essential to resist the motion. In addition, the Ninth Circuit held the district court did not err in granting summary judgment for AMP because Pratt presented no relevant evidence creating a triable issue of material fact on whether AMP breached its duty of care as a professional examination consultant.

Furthermore, the Ninth Circuit held the district court did not err in granting summary judgment for the Board defendants on Pratt's constitutional claims because he failed to generate a triable issue of fact on either disparate impact, or the intent to discriminate. Pratt also failed to create a triable issue of fact on his due process theory, as he did not present evidence that the examination was arbitrary or irrational. The Ninth Circuit said the district court did not abuse its discretion in refusing to permit Pratt to proceed on his "new theory that [the Board's] failure to maintain statistics on pass rates by race was itself a constitutional violation." Pratt did not provide any legal authority to support this theory and did not articulate how the failure to maintain statistics can violate the Fourteenth Amendment. Accordingly, the Ninth Circuit affirmed both grants of summary judgment in favor of the Board defendants and AMP.

On July 17, 2008, Pratt filed a first amended complaint (FAC) in the superior court action, which is the subject of the present appeal. Pratt asserted claims against the Board defendants and also Howard Sarasohn, the chief administrative officer of the Department of Consumer Affairs (collectively the State defendants). Pratt also asserted claims against AMP, Steven Bryant (the president of AMP) and Steven Nettles (the vice president of research and development at AMP)(collectively the AMP defendants). Pratt sought declaratory and injunctive relief, as well as damages for civil rights violations, breach of contract, and fraud. The gravamen of the FAC was that Pratt was denied a pharmacist license because the Board used an unreliable test designed by AMP and an invalid grading method, and the test had a disparate impact on members of racial minorities such as Pratt.

The FAC acknowledged that in the prior federal complaint, "as in the complaint filed in this lawsuit, Pratt alleged that [¶] Part Two of the examination and the grading scheme by the Board of the examinations given in June 2002, January 2003, and June 2003 resulted in an adverse impact on race, creed, color, and national origin, and specifically had an adverse impact on African Americans such as Pratt, all in violation of Government Code Section 12944(a), 42 USC 1983, and California Civil Code Sections 51 and 52."

Nonetheless, unlike Pratt's federal complaint, the FAC did not allege the availability of statistics showing that the pharmacy exam had an adverse impact based on race; rather, the FAC alleged that the Board failed to keep racial statistics as required by the Uniform Guidelines on Employee Selection Procedures. (29 C.F.R. § 1607 et. seq. (2010))*fn1 Citing 29 Code of Federal Regulations parts 1607.15*fn2 and 1607.4,*fn3 Pratt asserted that the Board is required to compile racial pass/fail statistics and that its failure to do so permits an inference that the examination had a disparate impact on racial minorities. According to the FAC, Pratt did not learn that the Board failed to meet its obligations to keep such statistics until January 2006, during the federal litigation. Moreover, Pratt asserted that the Ninth Circuit "made it clear" that he had to amend his complaint to include a new and different cause of action based on the newly discovered evidence that the Board has never maintained disparate impact statistics. Pratt attached the federal court decisions, discussed above, as exhibits to the FAC.

Pratt's FAC alleged that the Board's failure to keep the requisite statistics violated 42 United States Code section 1983 and Pratt's procedural and substantive due process rights and that, as a consequence, Pratt is entitled to declaratory and injunctive relief ordering the Board to issue him a pharmacist license. Pratt asserted there was "no other way" for him to obtain his pharmacist license.

Pratt also purported to state a claim for breach of contract against defendants. He alleged that the pharmacist exam was created by AMP pursuant to a contract with the Board entered in June 2000, in which AMP warranted that the test would meet the requirements of Government Code section 12944*fn4 and the aforementioned Uniform Guidelines on Employee Selection Procedures. (29 C.F.R. § 1607 (2010).) The contract, which is an exhibit to the FAC, states: "AMP's test development procedures are consistent with all leading professional and technical guidelines, including . . . all federal and legal regulations such as the Uniform Guidelines on Employee Selection Procedures (1978), which provide the research framework that may be used as a basis for validity of certification, licensing and employment testing programs. The detailed methodology proposed in the Scope of Work comply with these professional and government standards regarding item development, test construction (validity and reliability), scoring, analysis and reporting, to assure the defensibility of the finished products." (Original italics.)

Pratt further alleged that he is an intended third party beneficiary of the June 2000 contract because he was an African American applicant for the pharmacist exams. He said that AMP and the Board breached their obligations toward him by failing to maintain disparate impact statistics and by failing to ensure that part 2 of the examination was valid and reliable. As a result, the FAC asserted that Pratt is entitled to compensatory and punitive damages, and to a declaration that he is entitled to a pharmacist's license.

Pratt also alleged that defendants defrauded him by warranting in the contract that the exams would meet federal guidelines when they knew this was a misrepresentation. The FAC alleged that defendants concealed and suppressed these facts even though they had a duty to disclose them; they did so with an intent to defraud Pratt and induce him to take the examinations; Pratt was unaware of the true facts and would not have taken the examinations had he known the facts; and he would have demanded a valid and reliable examination that did not have a disparate impact. The FAC alleged that defendants also misapplied or did not use a modified Angoff procedure for grading examinations, and maliciously concealed this fact from Pratt. Pratt alleged that if proper methodology were used he actually passed the exam.

Pratt asserted that as a proximate result of defendants' fraudulent conduct, he suffered monetary damages and was denied the right to practice his profession. Pratt sought an order directing the State defendants to issue him a pharmacist license nunc pro tunc. He also sought compensatory and punitive damages from the individual State defendants based on their violation of his due process rights in not insuring that the examinations did not have a disparate impact on racial minorities, and from the AMP defendants based on their fraud and breach of contract.

Defendants demurred on the ground the complaint failed to state a cause of action because it was barred by principles of res judicata and/or collateral estoppel. Defendants argued that Pratt's complaint was premised on a claim he was injured by an invalid test that had a disparate impact on racial minorities, and this claim was litigated to an adverse final judgment in federal court. Defendants asserted that to the extent the complaint was not barred on this ground, then it was infirm because (1) it was barred by the relevant statutes of limitation, (2) the court could not grant the requested relief of a pharmacist's license, (3) Pratt was not a third party beneficiary of the contract between the Board and AMP, and (4) defendants had no duty to disclose that the test allegedly did not meet federal guidelines by maintaining racial pass/fail statistics and, in any event, this nondisclosure did not cause Pratt to fail the pharmacist exam.

The trial court sustained defendants' demurrers without leave to amend on all grounds raised by defendants.

STANDARD OF REVIEW

On appeal from a judgment dismissing an action after the trial court sustained a demurrer without leave to amend, the reviewing court accepts as true the properly pleaded material factual allegations of the complaint, together with facts that may be judicially noticed. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, the court does not assume the truth of contentions, deductions or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The judgment must be affirmed if any one of the several grounds raised in the demurrer is well taken. (Ibid.) If the plaintiff fails to meet his or her burden of proving that an amendment would cure the defective pleading, then the trial court did not abuse its discretion in sustaining the demurrer without leave to amend, and we will affirm the judgment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

DISCUSSION

Defendants demurred to Pratt's complaint on the ground that all of the claims alleged against them were barred by res judicata or collateral estoppel due to the granting of summary judgment in their favor in Pratt's federal court action. An order for summary judgment is generally considered to be a final judgment on the merits for purposes of res judicata. (Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 628-629; see also Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1689-1690 (Burdette).) And a final judgment on the merits in a prior federal court proceeding may provide an adequate basis for imposition of the doctrine of res judicata in a state court proceeding. (Code Civ. Proc., § 1908, subd. (a); Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 648-649 (Acuna).) Where a complaint and matters subject to judicial notice show that an action is barred by res judicata, a court may properly sustain a general demurrer. (Henry v. Clifford (1995) 32 Cal.App.4th 315, 320.)

Pratt contends defendants waived the defense of res judicata by not objecting to, or seeking to abate, the state court action while the federal action was being litigated. Furthermore, all of his claims are premised on defendants' failure to maintain racial statistics and, according to Pratt, the Ninth Circuit Court of Appeals held that any claim based on the failure to maintain such statistics is a new cause of action, which means it is not barred by res judicata.

We disagree with both contentions. Before addressing the contentions, however, we set forth the relevant legal framework.

A Res judicata, or claim preclusion, involves the preclusive effect of a final judgment on the merits. Claim preclusion prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, prevents relitigation of issues argued and decided in prior proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Burdette, supra, 158 Cal.App.4th at pp. 1674, 1681.)

"Res judicata bars the relitigation not only of claims that were conclusively determined in the first action, but also matter that was within the scope of the action, related to the subject matter, and relevant to the issues so that it could have been raised. [Citations.] 'A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.' [Citation.]" (Burdette, supra, 158 Cal.App.4th at pp. 1674-1675, original italics.) As such, the doctrine of res judicata promotes judicial economy by curtailing piecemeal litigation, with its concomitant vexation and expense to the parties and wasted effort and expense in judicial administration. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.)

"The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]" (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556; accord, People v. Barragan (2004) 32 Cal.4th 236, 253.)

To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts apply the "'primary rights'" theory. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).) This theory "provides that a 'cause of action' is comprised of a 'primary right' of the plaintiff, a corresponding 'primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.]" (Crowley v. Katleman, supra, 8 Cal.4th at p. 681.)

"'[T]he phrase "causes of action" is often used indiscriminately . . . to mean counts which state [according to different legal theories] the same cause of action . . . .' [Citation.] But for purposes of applying the doctrine of res judicata, the phrase 'cause of action' has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced." (Boeken, supra, 48 Cal.4th at p. 798.) "Thus, under the primary rights theory, the determinative factor is the harm suffered." (Ibid.) When two actions involving parties in privity seek compensation for the same harm, they generally involve the same primary right. (Ibid.)

B Pratt contends that his state court claims are not barred by the adverse summary judgments in his federal court action, but he does not address any of the relevant principles of res judicata or collateral estoppel discussed above. Nor does Pratt demonstrate that these legal principles do not apply in the present action. He simply maintains that the Ninth Circuit Court of Appeals "made it abundantly clear that the failure to maintain disparate impact statistics was an entirely new cause of action." According to Pratt, defendants could have sought a petition for rehearing but did not. "Thus," says Pratt, "the worm turns, the tables are turned, and the doctrines [defendants] keep using against [me] are now invoked against them. The Ninth Circuit has spoken. The failure-to-keep-racial-statistics is a new cause of action." Pratt misinterprets the Ninth Circuit's decision.

The Ninth Circuit affirmed the district court ruling that (1) there was no statistical evidence that the test and grading methodology had a disparate impact on racial minorities, and (2) the test was not negligently designed and did not violate due process. The Ninth Circuit also upheld the district court determination that Pratt could not oppose the summary judgment motion via an unsupported "new theory" that was not alleged in his complaint. In the federal court system, as in California, the allegations of the complaint delimit the scope of the issues on summary judgment. (Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1499; Hurlbert v. St. Mary's Health Care System, Inc. (11th Cir. 2006) 439 F.3d 1286, 1297 [having proceeded through discovery without amending the complaint to reflect a new theory for the cause of action, plaintiff "was not entitled to raise it in the midst of summary judgment"]; Chambers v. United States (8th Cir. 1966) 357 F.2d 224, 229 [defendant who moves for summary judgment need not negate any possibility not alleged in the complaint].)

Contrary to Pratt's contention, the Ninth Circuit did not hold that Pratt's "new theory" was a new "cause of action" as that term is used for purposes of res judicata, and its decision does not relieve Pratt of his burden to demonstrate that the new theory pleaded in his FAC is not barred by the federal court judgment. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [the appellant must affirmatively demonstrate error]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [the appellant must support each point with reasoned argument and citations to authority].)

Pratt fails to meet his burden. The only argument heading concerning res judicata in his opening brief states defendants waived the affirmative defense of res judicata. Pratt does not provide any analysis and supporting authority discussing the manner in which the allegations in the FAC set forth a new cause of action for violation of a different primary right than the one litigated in his federal court action. He simply states in a footnote, "The fraud and breach of contract claims are NOT the same as the negligence claim against AMP and the claims against the Board defendants in the federal lawsuit." (Original emphasis.) Saying it emphatically does not make it so.

Due to the deficiencies in his appellate brief, Pratt has forfeited any contention that the FAC seeks relief for the violation of a different primary right and that res judicata is not applicable in this case. (Placer Ranch Partners v. County of Placer (2001) 91 Cal.App.4th 1336, 1343, fn. 9 [points asserted perfunctorily in a footnote will not be considered]; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785 [when an appellant fails to support a point with reasoned argument and citations to authority, it is forfeited]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [an appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made or it is forfeited].)

In any event, our review discloses that Pratt's state court action is barred by res judicata. As we explained previously, the determinative factor is the harm suffered by Pratt, regardless of the specific remedy sought or the legal theory advanced. (Boeken, supra, 48 Cal.4th at p. 798.)

In federal court, Pratt claimed the Board defendants and AMP deprived him of a fair pharmacist examination free of any adverse impact on African Americans and of a fair grading methodology for the examination. He unsuccessfully sought licensure and damages based on the violation of those rights. In his state court action, Pratt recast those claims as the failure to keep adverse impact statistics, breach of contract, and fraud. But those were simply new theories seeking redress for the same harm: denial of a pharmacy license because of an allegedly discriminatory licensing test and infirm grading methodology. The harm is the same, and the asserted primary right is the same, whether statistics showed that the test had an adverse impact on minorities as alleged in the federal complaint, or whether a failure to keep statistics permitted an inference of adverse impact as alleged in the state court action.

Thus, the state court action is barred because it is based on the same primary right for which Pratt sought redress against parties in privity in the federal action. (Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 992 [federal court action for discrimination and state court action for breach of contract involved the same primary right to be employed]; Acuna, supra, 56 Cal.App.4th at p. 649 [summary judgment in title VII action in federal court barred FEHA action in state court as both claims were based on the right to be free of invidious employment discrimination]; Gamble v. General Foods Corp. (1991) 229 Cal.App.3d 893, 899-902 [federal employment discrimination suit was res judicata bar to state action for termination in violation of implied-in-fact contract because both actions involved primary right to employment].)

C Pratt contends, as he did in the trial court, that defendants waived the defense of res judicata because they did not object to him splitting his cause of action by pursuing a plea in abatement. He relies primarily on Clements v. Airport Authority of Washoe County (9th Cir. 1995) 69 F.3d 321 (Clements), but the case is of no assistance to him.

In Clements, plaintiffs pursued wrongful termination claims against the defendants in state and federal court, and judgment was entered in each action. (Clements, supra, 69 F.3d at pp. 325-326.) The defendants did not raise the affirmative defense of res judicata or otherwise object to plaintiffs splitting their cause of action until the appeal in the federal court action. (Id. at pp. 328-329.) The court in Clements held that defendants waived their claim preclusion defense because they did not raise it in a timely fashion, and allowing the defendants to assert the defense at such a late stage would work a substantial injustice on the plaintiffs. (Id. at p. 329.)

Unlike the defendants in Clements, defendants here raised the defense in a timely fashion. The AMP defendants raised the issue of res judicata in their demurrer to the FAC, which was the first pleading they filed in the state court action. The State defendants also made a timely assertion of res judicata. Unlike the defendants in the Clements case, the State defendants did not permit the two actions to be prosecuted simultaneously to judgment. Instead, they asserted in every case management statement filed in the Sacramento Superior Court that the state court case should be stayed pending the final resolution of Pratt's federal case. Pratt agreed to the stay. The record does not include an express order staying the matter, but Pratt's attorney filed a declaration indicating that the court had continued a case management conference for months because of the federal action. Indeed, there is no evidence that the parties were actively prosecuting the state court action; rather, the parties and the court were waiting for the outcome of the federal action. Then, after the Ninth Circuit filed its opinion in March 2008, Pratt filed his FAC in July 2008, and the State defendants raised the affirmative defense in their demurrer soon after.*fn5

Under the circumstances, defendants did not waive the affirmative defense of res judicata as Pratt maintains.

Pratt did not inform us of any new facts or suggest how he could amend his complaint to overcome the aforementioned deficiencies. Nor did he make any such showing in the trial court. We conclude that the trial court did not abuse its discretion in sustaining the demurrer without leave to amend. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)

DISPOSITION

The judgment is affirmed.

We concur: ROBIE , Acting P.J. BUTZ ,J.


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