Foxen v. Carpenter

Filed 11/3/16; pub. order 12/1/16 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CHRISTINE FOXEN, B268820

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC576625)
v.

JOHN CARPENTER et al.,

Defendants and Respondents.

APPEAL from the judgment of the Superior Court of Los
Angeles County. Elizabeth Allen White, Judge. Affirmed.

The Business Legal Group and Russell M. Frandsen for
Plaintiff and Appellant.

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and
Amanda M. Moghaddam for Defendants and Respondents.

**********
 Plaintiff and appellant Christine Foxen sued her former
attorneys, defendants and respondents John Carpenter, Paul
Zuckerman, Nicholas Rowley and Carpenter, Zuckerman &
Rowley, LLP, who had represented her in a personal injury
action. The trial court sustained defendants’ demurrer to
plaintiff’s operative first amended complaint on the basis of the
statute of limitations. We conclude all of plaintiff’s causes of
action are time-barred as a matter of law, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2015, plaintiff filed this action against
defendants alleging eight causes of action arising from alleged
misconduct during the course of the parties’ attorney-client
relationship. Following a demurrer by defendants to the original
complaint, plaintiff filed her operative first amended complaint
which alleges 10 causes of action: (1) declaratory relief;
(2) breach of fiduciary duty; (3) breach of contract/fee agreement;
(4) breach of contract/personal injury lien; (5) unfair and
deceptive business practices; (6) fraud; (7) conversion; (8) breach
of the implied covenant of good faith and fair dealing; (9) money
had and received; and (10) accounting.
Defendants again demurred, arguing primarily that
plaintiff’s claims were time-barred. After oral argument, the
court sustained defendants’ demurrer with leave to amend.
Plaintiff chose not to amend, and a dismissal of plaintiff’s action
was entered October 15, 2015. This appeal followed.
On appeal from a judgment dismissing an action after the
sustaining of a demurrer, our review is de novo. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) For the
limited purpose of reviewing the propriety of the trial court’s
ruling, we accept as true all well-pled factual allegations in the

2
operative complaint, as well as any facts that may be reasonably
implied or inferred from those expressly alleged. (Schifando v.
City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We also
consider the exhibits attached to the pleading. “[T]o the extent
the factual allegations conflict with the content of the exhibits to
the complaint, we rely on and accept as true the contents of the
exhibits and treat as surplusage the pleader’s allegations as to
the legal effect of the exhibits.” (See Barnett v. Fireman’s Fund
Ins. Co. (2001) 90 Cal.App.4th 500, 505.) We do not “however,
assume the truth of contentions, deductions or conclusions of
law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Our factual summary is drawn from the allegations of the
operative first amended complaint, including the attached
exhibits, according to this well-established standard.
In 2009, plaintiff suffered severe injuries in an auto
accident. Plaintiff hired defendants to represent her in a lawsuit
against the other driver (hereafter “the personal injury action”).
Plaintiff signed a one-page retainer and fee agreement with
defendants (hereafter “the fee agreement”). The fee agreement is
attached and incorporated by reference as exhibit A to the first
amended complaint. The fee agreement “does not meet the
requirements” of Business and Professions Code section 6147.
The fee agreement provides, in relevant part, that
defendants would represent plaintiff in the personal injury
action, their entitlement to fees was contingent on the recovery of
damages for plaintiff, the amount of the fee would be 40 percent
of the gross recovery, and litigation costs would be advanced by
defendants in their discretion, but reimbursed by plaintiff “upon
recovery and in addition to attorney fees.” The fee agreement

3
also granted defendants “a lien on any settlement, award or
judgment” to ensure payment of fees and costs actually incurred.
The fee agreement further provides that plaintiff
authorized defendants to deposit the proceeds of any recovery
into their client trust account “and distribute funds in accordance
with the terms of this agreement.”
The personal injury action proceeded to trial in January
2011. During trial, the defendants in that action offered to settle
with plaintiff for $5 million. Her counsel, defendants here,
advised plaintiff to reject the settlement offer, because they
believed the jury would award a larger sum. Plaintiff rejected
the settlement offer and the jury returned a verdict of
$2.3 million.
After the verdict, defendants filed an action on behalf of
plaintiff’s husband for loss of consortium.1 The parties to the
personal injury action then engaged in settlement discussions in
an attempt to reach a resolution of both plaintiff’s claim and her
husband’s claim. A settlement conference took place at the
courthouse and both plaintiff and her spouse attended.
Defendants occasionally spoke with plaintiff and her husband
during the conference but “never discussed the substance of the
negotiations.” The claims of both plaintiff and her spouse were
settled for the combined amount of $3 million. A written
settlement agreement was executed on February 25, 2011.
The settlement checks, dated February 23, 2011, were
tendered to defendants. Defendants did not submit “any kind of
accounting” to plaintiff regarding the proposed disbursement.
Instead, on March 2, 2011, defendants “wrongfully paid”

1 Plaintiff’s husband is not a party to this appeal.

4
themselves fees from the settlement funds as follows: $840,000
to the firm Carpenter, Zuckerman & Rowley, LLP, and $360,000
to Nicholas Rowley. Plaintiff did not learn of these payments
until “after April 1, 2011.”
Defendants further “wrongfully” charged plaintiff
$934,141.95 in litigation costs. In April 2011, defendants gave
plaintiff a “Proposed Disbursement” outlining those costs. The
proposed disbursement is attached and incorporated by reference
as exhibit B to the first amended complaint. The proposed
disbursement itemizes the “gross settlement” of $3 million, less
“attorney fees (40%)” of $1.2 million, litigation costs of
$574,141.95, and “outstanding medical bills” of $360,000. The
proposed disbursement itemizes the “final settlement” to plaintiff
as $846,000.24, with the “net recovery to client” as $865,858.05
(which includes earlier advances and “loans” to plaintiff of
$5,000, $6,000 and $8,857.81).
The proposed disbursement contains numerous fraudulent
and improper charges, including, for example, expert fees for
Ronald Fisk of $95,510 when Mr. Fisk only charged $60,480.
Plaintiff was unable to discover and verify the false charges until
September through December 2011 when various individuals,
like Mr. Fisk, responded to plaintiff’s inquiries directly about
their work and the total amount of their respective charges in the
personal injury action.
Defendants further wrongfully “induced” plaintiff to enter
into and sign a personal injury lien with defendants and one of
their “business associates” known as Excel Diagnostic Services
(EDS). The personal injury lien is attached and incorporated by
reference as exhibit C to the first amended complaint. EDS and
defendants charged plaintiff for numerous fraudulent, improper

5
and inflated costs, including for “caregiver resources” and case
management fees. Defendants also wrongfully charged plaintiff
in excess of $100,000 for the services of Finlay Boag related to
pre-trial focus groups, despite the fact that plaintiff never
authorized the hiring of Finlay Boag either orally or in the fee
agreement.
Defendants engaged in deceptive business practices,
breached their agreements with plaintiff, and wrongfully
withheld and converted to their own use funds owing to plaintiff
in the approximate amount of $1,180,287.85.
DISCUSSION
Plaintiff contends the trial court erred in concluding that
the one-year statute of limitations set forth at Code of Civil
Procedure section 340.6, subdivision (a) (hereafter section
340.6(a)) operates as a time-bar to her claims against her former
attorneys for declaratory relief, breach of contract, unfair
business practices, conversion, breach of the implied covenant,
money had and received, and for an accounting (causes of action
1, 3, 4, 5, 7, 8, 9 & 10).2
As relevant here, section 340.6(a) provides that “[a]n action
against an attorney for a wrongful act or omission, other than for

2 In her opening brief, plaintiff raises no argument regarding
her second cause of action for breach of fiduciary duty or her
sixth cause of action for fraud. Our review “ ‘is limited to issues
which have been adequately raised and supported in [appellant’s
opening] brief.’ [Citations.]” (WA Southwest 2, LLC v. First
American Title Ins. Co. (2015) 240 Cal.App.4th 148, 155 (WA
Southwest); accord, Garcia v. McCutchen (1997) 16 Cal.4th 469,
482, fn. 10; Series AGI West Linn of Appian Group Investors DE,
LLC v. Eves (2013) 217 Cal.App.4th 156, 168.)

6
actual fraud, arising in the performance of professional services
shall be commenced within one year after the plaintiff discovers,
or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission, or
four years from the date of the wrongful act or omission,
whichever occurs first.”
Recently, in Lee v. Hanley (2015) 61 Cal.4th 1225, 1233
(Lee), our Supreme Court outlined the legislative history and
purpose behind the enactment of section 340.6(a). “The
Legislature enacted section 340.6(a) in 1977 amid rising legal
malpractice insurance premiums.” Before its enactment, “the
limitations periods for malpractice lawsuits depended on the
forms of action contained in a plaintiff’s complaint.” (Lee, at p.
1234.) “Under the old scheme, attorneys could not be certain of
the applicable limitations period for potential claims of
malpractice.” (Ibid.) With section 340.6(a), “the Legislature
intended to establish a limitations period that would apply
broadly to any claim concerning an attorney’s violation of his or
her professional obligations in the course of providing professional
services regardless of how those claims were styled in the
plaintiff’s complaint.” (Lee, at p. 1235, italics added.) Section
340.6(a) was enacted “to eliminate the former limitations
scheme’s dependence on the way a plaintiff styled his or her
complaint.” (Lee, at p. 1236.)
1. Breach of Contract, Declaratory Relief, Money Had
and Received, and Breach of the Implied Covenant of
Good Faith and Fair Dealing
Plaintiff maintains that her claims for breach of contract,
declaratory relief, money had and received, and breach of the
implied covenant of good faith and fair dealing are not governed

7
by section 340.6(a), but rather, by the four-year statute of
limitations codified at Code of Civil Procedure section 337,
applicable generally to claims based on a written instrument.
Plaintiff’s first amended complaint contains numerous
allegations of alleged misconduct by defendants in the handling
of the personal injury action, including that defendants
“wrongfully” paid themselves fees and that the fee agreement
violated Business and Professions Code section 6147.
Nevertheless, in her arguments before this court, plaintiff
disavows any claim that the fee agreement was unconscionable or
that defendants were not entitled to the 40 percent fees set forth
in the fee agreement. Rather, plaintiff argues that her contract-
based claims are based on the “alternative” allegations in her
pleading that assume the validity of her agreements with
defendants, and that she has only pled “garden-variety” breach of
contract claims; claims that are based on defendants’ withholding
and converting additional funds from the settlement monies
beyond the fees to which they were entitled under the fee
agreement.
Plaintiff argues therefore that section 340.6(a) does not
apply to her contract claims because they are not based on the
quality of defendants’ legal services, but on their breach of
nonprofessional obligations generally owed by all persons who
enter into contracts. In so arguing, plaintiff relies in large part
on language in Lee where the Supreme Court explained that
“[m]isconduct does not ‘aris[e]’ in the performance of professional
services for purposes of section 340.6(a) merely because it occurs
during the period of legal representation or because the
representation brought the parties together and thus provided
the attorney the opportunity to engage in the misconduct. To

8
hold otherwise would imply that section 340.6(a) bars claims
unrelated to the Legislature’s purposes in enacting section
340.6(a)—for example, claims that an attorney stole from or
sexually battered a client while the attorney was providing legal
advice.” (Lee, supra, 61 Cal.4th at p. 1238.)
We do not agree that Lee requires reversal in this case.
Plaintiff’s position is directly contradicted by Lee in which the
court explained that “the attorney-client relationship often
requires attorneys to provide nonlegal professional services such
as accounting, bookkeeping, and holding property in trust.
[Citation.] Indeed, the training and regulation that make the
practice of law a profession, as well as the grounds on which an
attorney may be disciplined as an attorney, include professional
obligations that go beyond duties of competence associated with
dispensing legal advice or advocating for clients in dispute
resolution. [Citation.] In light of the Legislature’s intent that
section 340.6(a) cover more than claims for legal malpractice, the
term ‘professional services’ is best understood to include nonlegal
services governed by an attorney’s professional obligations.” (Lee,
supra, 61 Cal.4th at p. 1237.) Plaintiff’s effort to characterize her
contract claims as arising from breaches of “ordinary,” “nonlegal”
duties is unavailing.
Plaintiff contends that Lee focuses on the “proof” necessary
to establish a client’s claim against a former attorney as
determinative of what statute of limitations applies. She
contends her allegations are sufficient for the pleading stage and
that she is entitled to demonstrate, on the merits, that her claims
do not rely on proof that defendants violated professional
obligations and are therefore not time-barred.

9
 Lee held that “section 340.6(a)’s time bar applies to claims
whose merits necessarily depend on proof that an attorney
violated a professional obligation in the course of providing
professional services. In this context, a ‘professional obligation’ is
an obligation that an attorney has by virtue of being an attorney,
such as fiduciary obligations, the obligation to perform
competently, the obligation to perform the services contemplated
in a legal services contract into which an attorney has entered,
and the obligations embodied in the State Bar Rules of
Professional Conduct.” (Lee, supra, 61 Cal.4th at p. 1237.)
Plaintiff’s contract claims are based on defendants’ alleged
misconduct in allocating the settlement funds in the personal
injury action, either because they incorrectly calculated the
litigation costs, or because they breached their fiduciary duties to
her by intentionally manipulating those charges in order to
recover more monies than that to which they were entitled.
There is no other fair reading of the pleading and the attached
exhibits. In this case, plaintiff will not be able to establish her
contract claims against defendants without demonstrating they
breached professional duties owed to her, or nonlegal services
closely associated with the performance of their professional
duties as lawyers. Section 340.6(a) therefore applies.
Plaintiff alleges she discovered the false charges which
form the basis of her claims no later than December 2011, and
therefore she was on notice at that time that defendants had
wrongfully withheld funds from her. Her failure to file this
action within one year after that discovery is fatal to her claims.
2. Accounting
In her opening brief, plaintiff argued generally that her
claim for an accounting was timely and not governed by section

10
340.6(a), but she failed to identify what other statute of
limitations applies or why the accounting claim was timely under
that statute. In her reply brief, plaintiff briefly states that the
accounting cause of action is ancillary to the breach of contract
claims and is therefore governed by the four-year statute at Code
of Civil Procedure section 337. As we explained in footnote 2
above, our review “ ‘is limited to issues which have been
adequately raised and supported in [appellant’s opening] brief.’
[Citation.]” (WA Southwest, supra, 240 Cal.App.4th at p. 155.)
However, even if the argument were properly before us, we would
reject it on the merits. The claim is untimely for the same
reasons explained in part 1 above.
3. Conversion and Fraud
Plaintiff argues her cause of action for conversion is timely
and governed by the three-year statute of limitations at Code of
Civil Procedure section 338, subdivision (c). Indeed, plaintiff
argues the statute had not yet expired when she filed this action
in 2015 because the claim first accrued in 2013. Plaintiff argues
her case is closely analogous to the facts of Lee in which the court
concluded the plaintiff’s claim for conversion against her former
attorney was not necessarily barred by section 340.6(a). We are
not persuaded.
In Lee, the plaintiff had retained the defendant attorney in
a civil matter and had advanced the attorney $110,000 for
attorney fees, plus another $10,000 for expert costs. The matter
was settled and the defendant attorney sent the plaintiff a letter
and a final invoice, expressly stating that the plaintiff had a
credit balance of unearned fees in excess of $40,000. When the
plaintiff asked her attorney to return those unearned fees, the

11
attorney contradicted his earlier letter, denied there was any
credit balance, and refused to return any funds to the plaintiff.
Lee noted that for a demurrer based on the statute of
limitations to be successful, the time-bar must “ ‘ “ ‘ “affirmatively
appear on the face of the complaint; it is not enough that the
complaint shows that the action may be barred.” ’ ” ’ ” (Lee,
supra, 61 Cal.4th at p. 1232.) Given that legal standard and the
facts alleged, Lee concluded that the plaintiff’s “complaint may be
construed to allege that [the defendant] is liable for conversion
for simply refusing to return an identifiable sum of [the
plaintiff’s] money.” (Id. at p. 1240.) Because the defendant could
arguably be held liable for simple conversion, similar to ordinary
theft, section 340.6(a) did not necessarily apply, at the pleading
stage, to bar the plaintiff’s claim. (Lee, at p. 1240.) The court left
open the possibility that the defendant attorney may prove the
time-bar on summary judgment. (Ibid.)
Under no fair reading of the facts alleged in plaintiff’s first
amended complaint can it be inferred that defendants wrongfully
converted an identifiable sum of money which was undisputedly
owed to plaintiff. In any event, even assuming for the sake of
argument that plaintiff’s conversion claim is not governed by
section 340.6(a), her claim is still time-barred under the three-
year statute. Plaintiff’s operative pleading contains express
allegations that she discovered, no later than December 2011, the
alleged “wrongful” charges and fraudulent withholding by
defendants upon which her conversion claim is based. Under the
three-year statute of limitations, her conversion claim had to be
filed no later than December 2014. But, plaintiff did not file this
action until March 25, 2015, over three months too late.

12
 Plaintiff’s delayed accrual argument cannot save her claim.
Plaintiff argues she pled facts showing her conversion claim did
not accrue until 2013, citing paragraph 67 which alleges that
defendants “continued to knowingly, intentionally, and
deceitfully make these false and fraudulent claims to Plaintiff
Foxen and to third parties, with the intent of perpetrating a
fraud on Plaintiff Foxen, in calendar year 2012 and calendar year
2013. In reliance on these fraudulent claims, Plaintiff Foxen
deferred filing a lawsuit against [the law firm] until the present
time with the filing of this complaint.” This allegation, set forth
in the fraud cause of action, is incorporated by reference into the
conversion claim.
The allegation at best is a conclusion, contradicted by other
more specific allegations in the pleading, including her discovery
of the facts constituting the conversion by December 2011. It
matters not, for purposes of the accrual of plaintiff’s claims, that
defendants continued to assert the validity of their distribution of
the settlement monies. Plaintiff pled facts showing she
discovered and believed, by December 2011, that defendants had
wrongfully withheld and converted funds rightfully belonging to
her. Nothing in paragraph 67 defeats or diminishes the effect of
those admissions.
Moreover, plaintiff amended the allegations in paragraph
67 to delete certain facts which belie her claim of delayed accrual.
In the original complaint, paragraph 67 stated: “Plaintiff Foxen
has demanded in 2013 and 2014 that [defendants] return to
Plaintiff Foxen the converted funds. On each occasion,
[defendants] have refused to return to Plaintiff Foxen funds that
[defendants] have converted to their own use and that rightfully
belong to Plaintiff Foxen. On each such occasion in 2013 and

13
2014, [defendants] have falsely, knowingly and fraudulently
claimed that they are entitled to retain such funds as their own.
On each such occasion, [defendants] have committed anew a
conversion of the funds that belong to Plaintiff Foxen.” Plaintiff
dropped the allegations that the operative conduct in 2013 was
that she made additional demands to defendants to pay her the
disputed monies, focusing in her amended pleading on the fact
that defendants continued to make false representations about
the validity of the disbursement. To repeat, the allegations do
not diminish the import of her admissions about her knowledge of
wrongdoing by December 2011.
Generally, an amended pleading supersedes the prior
pleading. However, a well-established exception to this general
rule applies “ ‘where an amended complaint attempts to avoid
defects set forth in a prior complaint by ignoring them. The court
may examine the prior complaint to ascertain whether the
amended complaint is merely a sham.’ [Citation.] The rationale
for this rule is obvious. ‘A pleader may not attempt to breathe
life into a complaint by omitting relevant facts which made his
previous complaint defective.’ [Citation.] Moreover, any
inconsistencies with prior pleadings must be explained; if the
pleader fails to do so, the court may disregard the inconsistent
allegations. [Citation.] Accordingly, a court is ‘not bound to
accept as true allegations contrary to factual allegations in
former pleading[s] in the same case.’ [Citation.] [¶]
Furthermore, as a matter of law, allegations in a complaint must
yield to contrary allegations contained in exhibits to a complaint.”
(Vallejo Development Co. v. Beck Development Co. (1994) 24
Cal.App.4th 929, 946; accord, Larson v. UHS of Rancho Springs,

14
Inc. (2014) 230 Cal.App.4th 336, 343-344.) Plaintiff has failed to
state sufficient facts supporting a theory of delayed accrual.
As for plaintiff’s cause of action for fraud, she failed to raise
any argument concerning the claim in her opening brief, as we
already noted above. (WA Southwest, supra, 240 Cal.App.4th at
p. 155.) The argument is properly deemed forfeited. However,
even if we considered the argument, we would deny it on the
merits. Actions for actual fraud against an attorney are governed
by the three-year statute of limitations codified at Code of Civil
Procedure section 338, subdivision (d). (Prakashpalan v.
Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1122-
1123.) Plaintiff’s cause of action for fraud is time-barred for the
same reasons as her conversion cause of action. Plaintiff
specifically pled she discovered the facts constituting the fraud no
later than December 2011 but failed to file her action within
three years of that discovery.
4. Unfair Business Practices
Plaintiff also contends her claim for unfair business
practices pursuant to Business and Professions Code section
17200 is timely and not governed by section 340.6(a). However,
in her opening brief, plaintiff did not identify the statute of
limitations she contends is applicable, nor raise any argument
how any such statute applied on the facts here. She first raised,
in her reply brief, the contention that the four-year statute of
limitations set forth at Business and Professions Code section
172083 applies. As we have already explained above, our review “

3 Business and Professions Code section 17208 provides in
relevant part: “Any action to enforce any cause of action
pursuant to this chapter shall be commenced within four years
after the cause of action accrued.”

15
‘is limited to issues which have been adequately raised and
supported in [appellant’s opening] brief.’ [Citation.]” (WA
Southwest, supra, 240 Cal.App.4th at p. 155.) Even if the
argument were properly before us, we would reject it on the
merits.
It is well established that “where more than one statute
might apply to a particular claim, ‘ “a specific limitations
provision prevails over a more general provision.” [Citation.]’
[Citation.]” (Yee v. Cheung (2013) 220 Cal.App.4th 184, 195;
accord, Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 881 [more
specific statute of limitations at section 340.6(a) applied to claim
for malicious prosecution against an attorney, rather than
general statute applicable to malicious prosecution claims
generally].) Section 340.6(a) is the more specific statute,
codifying a statute of limitations for all claims, except actual
fraud, against attorneys arising from their professional
obligations. Section 340.6(a) therefore applies to plaintiff’s unfair
business practices claim. The claim is time-barred for the
reasons explained in part 1 above.
5. Leave to Amend
Plaintiff declined the opportunity to amend her pleading
following the court’s sustaining of defendants’ demurrer to her
first amended complaint. “ ‘It is the rule that when a plaintiff is
given the opportunity to amend his complaint and elects not to do
so, strict construction of the complaint is required and it must be
presumed that the plaintiff has stated as strong a case as he can.’
[Citations.]” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.)
Plaintiff has forfeited any right to request leave to amend. (Las
Lomas Land Co., LLC v. City of Los Angeles (2009) 177
Cal.App.4th 837, 861.)

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 DISPOSITION
The judgment of dismissal entered October 15, 2015 in
favor of defendants and respondents John Carpenter, Paul
Zuckerman, Nicholas Rowley, and Carpenter, Zuckerman &
Rowley, LLP is affirmed. Defendants and respondents shall
recover costs of appeal.

GRIMES, J.
WE CONCUR:

RUBIN, Acting P. J.

FLIER, J.

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Filed 12/1/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CHRISTINE FOXEN, B268820
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC576625)

v. ORDER CERTIFYING
OPINION FOR
JOHN CARPENTER et al., PUBLICATION

Defendants and Respondents. [NO CHANGE IN JUDGMENT]

THE COURT:
The opinion in the above-entitled matter filed on
November 3, 2016, was not certified for publication in the Official
Reports. For good cause, it now appears that the opinion should
be published in the Official Reports and it is so ordered.
There is no change in the judgment.

____________________________________________________________
RUBIN, Acting P. J. FLIER, J. GRIMES, J.