Doe v. Westmont College

Filed 1/25/21; Modified and Certified for Publication 2/8/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOHN DOE, 2d Civ. No. B303208
(Super. Ct. No. 17CV00188)
Plaintiff and Appellant, (Santa Barbara County)

v.

WESTMONT COLLEGE,

Defendant and Respondent.

John Doe filed a petition for writ of administrative
mandate to overturn Westmont College’s determination that he
committed sexual assault. (Code Civ. Proc., 1 § 1094.5.) The trial
court granted John’s petition, and he moved for an attorney fee
award. (§ 1021.5.) The court denied John’s motion. Westmont
appealed from the judgment, but John did not appeal from the
postjudgment order denying his attorney fee motion.
We affirmed the judgment in a published opinion.
(See Doe v. Westmont College (2019) 34 Cal.App.5th 622 (Doe I).)

1 Statutory references are to the Code of Civil Procedure.
After the remittitur issued, John moved for attorney fees based
on our decision. The trial court denied John’s motion, concluding
that he did not meet section 1021.5’s criteria for a fee award.
Alternatively, the court concluded that it was appropriate to deny
John’s motion because he did not provide a meaningful basis on
which it could apportion the fees he incurred.
Because the trial court applied the wrong standards
when it denied John’s attorney fee motion, we vacate the denial
order. In doing so, we express no view as to whether the court
should award section 1021.5 attorney fees on remand after it
applies the proper legal standards.
FACTUAL AND PROCEDURAL HISTORY
John and a fellow Westmont student, Jane Roe,
attended a party in January 2016. (Doe I, supra, 34 Cal.App.5th
at p. 627.) After the party, Jane accused John of sexual assault.
(Ibid.) Westmont investigated the matter, found Jane’s
accusation credible, and suspended John for two years. (Id. at
pp. 632-633.)
John challenged the decision in a petition for writ of
administrative mandate, arguing that Westmont did not give him
a fair hearing and that substantial evidence did not support its
decision. (Doe I, supra, 34 Cal.App.5th at p. 633.) The trial court
agreed with John’s fair hearing argument and ordered Westmont
to set aside its decision. (Id. at pp. 633-634.) It did not reach the
substantial evidence argument. (Id. at p. 633.)
We affirmed the judgment in a published opinion,
agreeing that Westmont failed to provide John with a fair
hearing. (Doe I, supra, 34 Cal.App.5th at p. 625.) Like the trial
court, we did not reach the issue of whether substantial evidence
supported Westmont’s decision. (Ibid.) Westmont declined to

2
rehear John’s case, and vacated the findings against him. John
then moved for an attorney fee award based on our published
opinion. He requested $85,652 in fees.
Westmont opposed John’s motion, arguing that it was
barred by principles of res judicata. Westmont also characterized
John’s motion as a “renewed” request for attorney fees, which it
urged the court to deny because it did not meet the requirements
of section 1008. If the court did “reconsider” the attorney fee
issue, Westmont argued that it should deny John’s motion on the
merits because he did not meet section 1021.5’s requirements.
The trial court agreed with Westmont’s third
argument and denied John’s motion. First, John’s overarching
interest in the case was personal, both during the proceedings on
his writ petition in the trial court and in his defense of the court’s
decision on appeal. Second, to the extent our published opinion
conferred a significant benefit on a large group of people, that
benefit arose from Westmont’s decision to appeal, not John’s.
Finally, an attorney fee award would “punish Westmont for
appealing rather than vindicate the purposes behind . . . section
1021.5.” Thus, “in the context of the third element of . . . section
1021.5, [John] ha[d] not persuasively shown [that] the financial
burden of private enforcement warrant[ed] subsidizing [his]
attorneys.”
The trial court also concluded that even if John did
meet section 1021.5’s requirements for an attorney fee award, he
provided no basis for apportioning those fees. Significant
portions of the proceedings on his writ petition and on appeal
were dedicated to arguments regarding how substantial evidence
did not support Westmont’s decision, arguments that pertained
solely to John’s private interests. Furthermore, the court did not

3
consider them. Thus, without a basis for excluding the fees
related to those arguments, the court deemed it necessary to deny
John’s attorney fee request in its entirety.
DISCUSSION
Appealability
We first consider—and reject—Westmont’s claim that
we do not have jurisdiction to consider an appeal from the denial
of John’s postappeal motion for attorney fees.
An attorney fee award may be based on a published
appellate opinion. (Serrano v. Stefan Merli Plastering Co., Inc.
(2011) 52 Cal.4th 1018, 1029 (Serrano).) “Indeed, because section
1021.5 ‘requires the claimant to show that the principal action
“has resulted” in the enforcement of an important right and that
a significant benefit “has been conferred”’ [citation], that showing
often ‘cannot be made until the benefit is secure, in some cases
after judgment is final.’ [Citations.]” (Citizens Against Rent
Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 226-227.)
That is what occurred here: After this court affirmed the
judgment granting John’s writ petition, John moved for an
attorney fee award based on the determinations we made in our
published opinion. The trial court’s order denying that motion is
appealable. (§ 904.1, subd. (a)(2).)
Westmont contends that the denial of a renewed
motion is not appealable. (See, e.g., Global Protein Products, Inc.
v. Le (2019) 42 Cal.App.5th 352, 364; Chango Coffee, Inc. v.
Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1252-
1254; Tate v. Wilburn (2010) 184 Cal.App.4th 150, 159-160
(Tate).) But that is not what occurred here.
A party renews a motion by “mak[ing] a subsequent
application for the same order [based on] new or different facts,

4
circumstances, or law.” (§ 1008, subd. (b), italics added.) Both
the original and renewed motions must request “identical relief.”
(California Correctional Peace Officers Assn. v. Virga (2010) 181
Cal.App.4th 30, 43, alterations omitted.) Here, John’s preappeal
motion requested $58,466 in attorney fees, while his postappeal
motion requested $85,652 in fees. The postappeal motion thus
cannot be construed as a renewal of his preappeal motion.
Westmont implicitly acknowledges as much,
recognizing that other provisions of section 1008 do not permit
actions to be taken after judgment is final. (See, e.g., State of
California v. Superior Court (Flynn) (2016) 4 Cal.App.5th 94, 100
[trial court cannot reconsider interim ruling pursuant to
subdivision (c) after final judgment]; Branner v. Regents of
University of California (2009) 175 Cal.App.4th 1043, 1048
[motion to reconsider pursuant to subdivision (a) invalid if filed
after final judgment].) And courts considering other types of
renewed motions have similarly concluded that “[a] second
motion, decided after an appealable order denying the first
motion has become final, cannot be considered as a renewal of . . .
the first motion.” (Rambush v. Rambush (1968) 267 Cal.App.2d
734, 741; see also Griset v. Fair Political Practices Com. (2001) 25
Cal.4th 688, 701-702.) Instead, the second motion “‘must be
regarded as an independent and separate request for relief.’”
(Rambush, at p. 741, fn. 5.)
The concerns underlying the nonappealability of
renewed motions do not prevent us from deeming John’s
postappeal motion an independent and separate request for
relief. Renewed motions are generally not appealable because
permitting such appeals might: (1) render “a nonappealable
order or judgment . . . appealable,” (2) permit a party to “have

5
two appeals from the same decision,” or (3) give a party “an
unwarranted extension of time to appeal.” (Tate, supra, 184
Cal.App.4th at p. 160.) But here, a nonappealable order has not
been rendered appealable; orders denying postjudgment motions
for attorney fees are themselves appealable. (P R Burke Corp. v.
Victor Valley Wastewater Reclamation Authority (2002) 98
Cal.App.4th 1047, 1053; see § 904.1, subd. (a)(2).) John is not
getting two appeals from the same decision; he did not appeal the
denial of his preappeal motion for attorney fees, nor has he raised
any issue connected to the denial of that motion here. And John
has not received an unwarranted extension of time to appeal;
again, John has not raised any issue connected to his preappeal
attorney fee motion, and there is no question that the current
appeal was timely filed.
Westmont’s argument that John is not entitled to
appeal from the denial of his postappeal motion for attorney fees
because he did not cross-appeal the trial court’s order denying his
preappeal motion is not persuasive. Because our opinion on
appeal provided the basis for John’s postappeal motion, an appeal
from the denial of the preappeal motion would have involved
different facts and legal arguments. In addition, appealing from
the denial of the preappeal motion was not a prerequisite to
seeking postappeal attorney fees. (Cf. Center for Biological
Diversity v. County of San Bernardino (2010) 188 Cal.App.4th
603, 613 [party not required to appeal preappeal attorney fee
order to seek supplemental postappeal fees].)
Next, Westmont argues that the doctrines of
collateral estoppel and res judicata prevent John from
challenging the order denying his postappeal motion. But these
doctrines apply to issues determined by prior rulings. (See

6
Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511
[collateral estoppel]; In re Matthew C. (1993) 6 Cal.4th 386, 393
[res judicata], superseded by statute on other grounds as stated
in People v. Mena (2012) 54 Cal.4th 146, 157.) And the issues
decided in John’s preappeal motion were connected to the trial
court’s findings during the writ proceedings, while the issues to
be decided here are connected to the determinations we made in
our published opinion. The doctrines of collateral estoppel and
res judicata are therefore inapplicable.
Finally, Westmont argues that considering the merits
of this case runs afoul of the “one final judgment” rule. But that
rule is not relevant here: John is challenging a postjudgment
order, not the judgment. “‘When a party wishes to challenge both
a final judgment and a postjudgment costs/attorney fee order, the
normal procedure is to file two separate appeals: one from the
final judgment, and a second from the postjudgment order.’
[Citation.]” (Torres v. City of San Diego (2007) 154 Cal.App.4th
214, 222, italics original.) We accordingly turn to the merits of
John’s appeal.
Section 1021.5 attorney fees
John contends the trial court erred when it denied his
postappeal motion for attorney fees because: (1) his action
against Westmont resulted in the enforcement of an important
right affecting the public interest, (2) his action conferred
significant benefits on a large group of people, and (3) the
necessity and burden of private enforcement makes an attorney
fee award appropriate. We agree with John’s first two
contentions, and conclude that the court below applied the wrong
standard when deciding the merits of the third.

7
 1. General legal principles
Pursuant to section 1021.5, a trial court may “award
attorney[] fees to a successful party against one or more opposing
parties in any action [that] has resulted in the enforcement of an
important right affecting the public interest if: (a) a significant
benefit, whether pecuniary or nonpecuniary, has been conferred
on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement . . . are such as to
make the award appropriate, and (c) such fees should not in the
interest of justice be paid out of the recovery, if any.” 2 (§ 1021.5.)
“The intent . . . is not ‘to punish those who violate the law but
rather to ensure that those who have acted to protect public
interest will not be forced to shoulder the cost of litigation.’
[Citation.]” (Friends of Spring Street v. Nevada City (2019) 33
Cal.App.5th 1092, 1107.)
We review a trial court’s order denying a motion for
section 1021.5 attorney fees for abuse of discretion.
(Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213
(Whitley).) We first consider “whether the . . . court applied the
proper legal standards,” paying “particular attention to the . . .
stated reasons for denying fees.” (Robinson v. City of Chowchilla
(2011) 202 Cal.App.4th 382, 391 (Robinson).) If the court applied
incorrect legal standards, its denial order “necessarily [fell]
outside the scope of [its] discretion” and must be vacated. (Ibid.)
2. Important right affecting the public interest
“[S]ection 1021.5 provides no concrete standard or
test against which a court may determine whether the right
vindicated in a particular case is sufficiently ‘important’ to

2 The last of these elements is not at issue since John did
not receive a financial recovery.

8
justify” an attorney fee award. (Woodland Hills Residents Assn.,
Inc. v. City Council (1979) 23 Cal.3d 917, 935 (Woodland Hills).)
And while attorney fees have been awarded for “the vindication of
both constitutional and statutory rights,” not all such rights can
be deemed important. (Ibid., footnote omitted.) Courts must
thus “exercise judgment in attempting to ascertain the ‘strength’
or ‘societal importance’ of the right involved” (ibid.), “realistically
assess[ing] the significance of that right in terms of its
relationship to the achievement of fundamental legislative goals”
(id. at p. 936).
Here, we have no difficulty concluding that John’s
defense of the judgment granting his writ petition helped to
enforce an important right affecting the public interest. First,
John’s case resulted in a published opinion. The publication of an
opinion suggests that the case involved a matter of public
importance. (Serrano, supra, 52 Cal.4th at p. 1029.) Second,
over the past five years, there has been substantial litigation
involving college and university practices for providing fair
hearings to students accused of sexual assault. Explaining the
contours of what is required in these hearings “benefits students
accused of sexual misconduct, victims, and colleges alike.” (Doe I,
supra, 34 Cal.App.5th at p. 640.) Finally, “[t]he common law
requirements for a fair hearing at a private college [like
Westmont] ‘mirror the due process protections at public
universities.’ [Citation.]” (Id., at p. 634.) That reinforces our
conclusion that the fair hearing practices John helped to enforce
were important rights affecting the public interest, not just
John’s own personal interests as the trial court concluded. (Press
v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318 (Press) [if right is
of “constitutional stature,” that can meet section 1021.5’s

9
“important right” element]; Hall v. Department of Motor
Vehicles (2018) 26 Cal.App.5th 182, 191 (Hall) [“due process
undoubtedly is an important right affecting the public interest”].)
3. Significant benefit conferred on a large group of people
“[T]he ‘significant benefit’ that will justify an
attorney fee award need not represent a ‘tangible’ asset or a
‘concrete’ gain but, in some cases, may be recognized simply from
the effectuation of a fundamental constitutional or statutory
policy.” (Woodland Hills, supra, 23 Cal.3d at p. 939.) But not all
litigation that effectuates such policies will justify an attorney fee
award. (Ibid.) Courts must instead make “a realistic
assessment, in light of all the pertinent circumstances, of the
gains [that] have resulted in a particular case” to determine
whether a section 1021.5 attorney fee award is warranted. (Id. at
p. 940.)
When making that assessment, the court should be
mindful that the plaintiff “need only show that [their litigation]
conferred a significant benefit on the public.” (City of Maywood v.
Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 429,
fn. 32.) The extent of that benefit “‘“need not be great,”’” “[n]or is
it required that the class of persons benefited be ‘“readily
ascertainable.”’” (Sweetwater Union High School Dist. v. Julian
Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 991
(Sweetwater Union).) Moreover, the plaintiff’s “subjective
motivations in pursuing the litigation are . . . not relevant to [the]
inquiry.” (City of Maywood, at p. 429, fn. 32.) While section
1021.5 does not permit awards “for litigants motivated by their
own interests who coincidentally serve the public” (California
Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30
Cal.App.4th 562, 570), “fees may not be denied merely because

10
the primary effect of the litigation was to benefit the individual
rather than the public” (Indio Police Command Unit Assn. v. City
of Indio (2014) 230 Cal.App.4th 521, 543).
Here, John helped to ensure that Westmont complies
with its own fair hearing policies and procedures. (See Doe I,
supra, 34 Cal.App.5th at p. 639 [summarizing procedures].) The
benefits that stem from this compliance are not confined to John,
but extend to sexual assault victims, those accused of such
assaults, and the personnel who investigate and adjudicate the
accusations. (Id. at p. 640; see also Beach Colony II v. California
Coastal Com. (1985) 166 Cal.App.3d 106, 112 [litigation can
improve defendant’s sensitivity to rights of others affected by its
actions].) “Attorney fees have consistently been awarded for the
enforcement of well-defined, existing obligations.” (Press, supra,
34 Cal.3d at p. 318.)
Additionally, John’s defense of the judgment resulted
in a published opinion, which “alone supports a conclusion that
the result was of significant statewide public interest.” (Protect
Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 495,
fn. 8; see also Press, supra, 34 Cal.3d at pp. 318-319; Leiserson v.
City of San Diego (1988) 202 Cal.App.3d 725, 737.) That that
opinion arose from Westmont’s decision to appeal rather than
John’s is irrelevant: “How [a] party achieves [their] goal of
enforcing the right in question is not determinative of the right to
an award of attorney fees under section 1021.5.” (In re Head
(1986) 42 Cal.3d 223, 228-229.) “The impact of the litigation is.”
(Id. at p. 229.)
This case is unlike Roybal v. Governing Board of
Salinas City Elementary School Dist. (2008) 159 Cal.App.4th
1143, on which Westmont relies. The writ petition at issue in

11
Roybal did not involve fair hearing policies and procedures that
affect an entire college, but rather hinged on a “failure of proof”
specific to the employee-plaintiffs. (Id. at p. 1149.) As such, the
granting of the petition was not relevant to any district employee
other than those named in the petition. (Ibid.)
4. Necessity and financial burden of private enforcement
Section 1021.5 incentivizes “‘“‘public-interest
litigation that might otherwise have been too costly to bring.’”’
[Citation.]” (Hall, supra, 26 Cal.App.5th at p. 188.) Before
awarding attorney fees under this section, a court must examine
two factors related to the costs of litigation: “‘“whether private
enforcement was necessary[,] and whether the financial burden of
private enforcement warrants subsidizing the successful party’s
attorneys.”’ [Citations.]” (Whitley, supra, 50 Cal.4th at pp. 1214-
1215.) The first prong of this inquiry “‘“‘“looks to the adequacy of
public enforcement[,] and seeks economic equalization of
representation in cases where private enforcement is necessary.”’
[Citations.]”’ [Citation.]” (Id. at p. 1215.) It “has long been
understood to mean simply that public enforcement is not
available, or not sufficiently available.” (Id. at p. 1217.)
“The second prong of the inquiry addresses the
‘financial burden of private enforcement.’” (Whitley, supra, 50
Cal.4th at p. 1215.) This requires a court to examine “not only on
the costs of the litigation but also any offsetting financial benefits
that the litigation yields or reasonably could have been expected
to yield.” (Ibid.) A fee award will be appropriate “‘“when the cost
of the [plaintiff’s] legal victory transcends [their] personal
interest[;] that is, when the necessity for pursuing the lawsuit
placed a burden on the plaintiff ‘out of proportion to [their]
individual stake in the matter.’ [Citation.]”’ [Citation.]” (Ibid.)

12
 The trial court examined neither of these prongs
when it denied John’s motion. Nowhere in its decision did it
consider whether public enforcement of John’s fair hearing rights
was available or adequate. That alone was an abuse of
discretion. (Robinson, supra, 202 Cal.App.4th at p. 391.)
Additionally, the court failed to consider whether the financial
burden hoisted on John in prosecuting his case outweighed his
own personal interests, focusing instead on the “punishment”
that would be inflicted on Westmont for exercising its right to
appeal. Focusing on the abstract impacts to Westmont rather
than the concrete financial burden on John was an abuse of
discretion. (Ibid.; see Norberg v. California Coastal Com. (2013)
221 Cal.App.4th 535, 544.)
Apportionment
John contends the trial court erred when it denied his
attorney fee motion due to his failure to provide a basis for
apportionment between the fees he incurred to advance his
private interests and those that advanced the public interest. We
agree.
If a trial court determines that attorney fees should
be awarded pursuant to section 1021.5, it may restrict those fees
to the “portion of the attorneys’ efforts that furthered the
litigation of issues of public importance.” (Whitley, supra, 50
Cal.4th at p. 1226.) “We apply a two-step inquiry in analyzing
whether section 1021.5 fees are appropriate where a plaintiff
achieves limited success.” (Sweetwater Union, supra, 36
Cal.App.5th at p. 996.) “The first step is to determine whether
the [plaintiff’s] successful and unsuccessful claims are related.”
(Id. at p. 997.) “‘If the different claims are based on different
facts and legal theories, they are unrelated; if they involve a

13
common core of facts or are based on related legal theories, they
are related.’ [Citation.]” (Ibid.)
“Where claims are related, the second step requires
the trial court to evaluate the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably
expended on the litigation and reduce the lodestar calculation if
the relief is limited in comparison to the scope of the litigation as
a whole.” (Sweetwater Union, supra, 36 Cal.App.5th at p. 997.)
But “‘[t]he fee award should not be reduced simply because the
plaintiff failed to prevail on every contention raised in the
lawsuit.’” (Ibid., alterations omitted.) “‘Litigants in good faith
may raise alternative legal grounds for a desired outcome, and
the court’s rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee.’” (Ibid.) “‘The result is what
matters.’ [Citation.]” (Ibid.)
A trial court has broad discretion when determining
whether to apportion attorney fees. (Abdallah v. United Savings
Bank (1996) 43 Cal.App.4th 1101, 1111.) We will find no abuse of
discretion when a court declines to apportion fees between claims
that “‘are so inextricably intertwined that it would be impractical
or impossible to separate the attorney’s time into compensable
and noncompensable units.’” (Harman v. City and County of San
Francisco (2007) 158 Cal.App.4th 407, 417.) Similarly, we will
find no abuse of discretion when the court “apportion[s] fees even
where the issues are connected, related[,] or intertwined.” (El
Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154
Cal.App.4th 1337, 1365.) The court will abuse its discretion,
however, if it denies an attorney fee request based on the
difficulty of apportioning fees. (See Bell v. Vista Unified School

14
Dist. (2000) 82 Cal.App.4th 672, 689 (Bell) [trial court must
apportion fees if counsel unable to do so].)
“An award of attorney[] fees under . . . section
1021.5 is an obligation” if the claimant meets the criteria for such
an award. (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th
810, 838.) And “[a]lthough it may be difficult to apportion
recoverable attorney work and non-recoverable attorney work,
the inherent difficulty of this relatedness analysis is not a basis
upon which a . . . court may deny an award of attorney[] fees.”
(Lyon v. Chase Bank USA, N.A. (9th Cir. 2011) 656 F.3d 877, 892,
fn. 11.) Thus, on remand, if the court determines that the
requirements of section 1021.5 have been met, it must award
fees. Only then should the court determine whether and how to
apportion those fees. The court has broad discretion to make the
appropriate apportionment itself if counsel is unable to do so.
(Bell, supra, 82 Cal.App.4th at p. 689.)
DISPOSITION
The order denying John’s postappeal motion for
attorney fees, entered October 22, 2019, is vacated, and the
matter is remanded to the trial court with directions to apply the
proper standards in determining whether the necessity and
financial burden of private enforcement make a section 1021.5
attorney fee award appropriate here. We express no opinion as to
whether a fee award is appropriate. If the court concludes that it

15
is, it shall determine the amount of fees to be awarded, whether
and how to apportion those fees, and the amount of the
multiplier, if any. John shall recover his costs on appeal.

TANGEMAN, J.
We concur:

GILBERT, P. J.

PERREN, J.

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 Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

______________________________

Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
Musick, Peeler & Garrett and Adam L. Johnson for
Defendant and Respondent.
Filed 2/8/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOHN DOE, 2d Civ. No. B303208
(Super. Ct. No. 17CV00188)
Plaintiff and Appellant, (Santa Barbara County)

v. ORDER MODIFYING
OPINION AND CERTIFYING
WESTMONT COLLEGE, OPINION FOR PUBLICATION
[NO CHANGE IN
Defendant and Respondent. JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on January 25,
2021, be modified as follows:
1. On page 1, the following paragraph is inserted as the
first paragraph in the opinion:

In some cases, although parties succeed at trial, the full
breadth of their success is not realized until they defend
the case on appeal. May such a party move for attorney
fees post appeal if the trial court denied their preappeal
attorney fee motion? We conclude that they may do so.
 There is no change in the judgment.
The opinion in the above-entitled matter filed on January
25, 2021, 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.

____________________________________________________________
GILBERT, P. J. PERREN, J. TANGEMAN, J.

2