Banta v. American Medical Response CA2/2

Filed 4/19/23 Banta v. American Medical Response CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

VAUGHN BANTA, B313589

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC393113)
v.

AMERICAN MEDICAL
RESPONSE, INC., et al.,

Defendants and
Respondents.

APPEAL from an order of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Affirmed.
The Van Vleck Law Firm and Brian F. Van Vleck for
Plaintiff and Appellant.
Epstein Becker & Green, Michael S. Kun and Kevin D.
Sullivan for Defendants and Respondents.

_______________________
 Plaintiff and appellant Vaughn Banta (plaintiff) appeals
from the order granting a judgment on the pleadings in favor of
defendants and respondents, American Medical Response, Inc.,
American Medical Response Ambulance Services, Inc., American
Medical Response of Inland Empire, American Medical Response
of Southern California, and American Medical Response West
(collectively defendants). Plaintiff claims that, since defendants
required emergency medical technicians to be on call during their
meal and rest breaks, he was denied legally required meal and
rest periods.
The trial court found the claims were not sufficiently
pleaded, and it was not possible to correct the defects by
amendment because statutes, enacted pursuant to Proposition 11
(Lab. Code, §§ 880–890),1 required emergency medical
technicians to be reachable throughout their entire work shift.
We affirm the order.

FACTUAL BACKGROUND
Plaintiff is an emergency medical technician (EMT) who
brought this action against defendants, claiming they failed to
pay him overtime, provide him with meal and rest periods, pay
compensation for missed meal periods, and provide valid wage
statements. The complaint was filed on June 23, 2008.
The operative pleading is the second amended complaint
(SAC) filed on March 31, 2010. Throughout this case plaintiff has
claimed defendants denied EMT’s meal and rest periods because

1 All further unattributed statutory references are to the
Labor Code.

2
the EMT’s had to remain available during their meal and rest
breaks.
When this action commenced, plaintiff also sent a notice
under the Private Attorneys General Act of 2004, enacted at
section 2698 et seq. (PAGA), to the California Labor and
Workforce Development Agency to claim violations of the law
concerning meal and rest periods, overtime, and wage
statements.2 In addition, plaintiff filed a motion for class
certification of each claim in the SAC.
On February 25, 2014, the trial court certified a class for
only his overtime claim. Plaintiff sought review of the denial to
certify classes for the meal and rest period claims. That appeal
was dismissed because a class had been certified on the overtime
claim, and, as a result, there was no final appealable judgment on
the class claims. (Banta v. American Medical Response, Inc.
(Feb. 22, 2016, B255239) [nonpub. opn.].)
Upon remand, plaintiff dismissed the overtime claims and
proceeded on his individual and PAGA claims. Defendants then
filed a motion to strike the PAGA claim as unmanageable, which
the trial court granted on April 10, 2018. Plaintiff appealed the
order striking his PAGA claims, also seeking review of the
February 25, 2014 order denying class certification of the meal
and rest period claims. Before an opinion issued, the law on meal
and rest periods for EMT’s changed.
On November 6, 2018, California voters approved
Proposition 11, which enacted the Emergency Ambulance
Employee Safety and Preparedness Act, codified at sections 880

2 The applicable laws violated are sections 226.7 and 512
(meal and rest periods), 510 (overtime), and 226 (wage
statements).

3
to 890 (Proposition 11). This proposition was in response to
Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257
(Augustus), where our Supreme Court held that security guards
cannot be required to be “on call” during their rest periods. The
decision found that section 226.7 and Industrial Welfare
Commission (IWC) wage order 4-20013 (Cal. Code Regs., tit. 8,
§ 11040; Wage Order 4) barred employers from requiring
employees to work during their breaks.4 (Augustus, supra, at
pp. 272-273.) Employers must relinquish any control over how
employees spend their break time because “[a] rest period, in
short, must be a period of rest.” (Id. at p. 273.)
Since this applied to EMT’s, an exception was created by
Proposition 11 that required EMT’s to be on call throughout their
work shift, including their breaks. Section 887, subdivision (a)

3 Wage orders are issued by the IWC, which was delegated
authority for setting minimum wages, maximum hours, and
working conditions. (Martinez v. Combs (2010) 49 Cal.4th 35, 52–
53.)
4 Section 226.7, subdivision (b), states: “An employer shall
not require an employee to work during a meal or rest or recovery
period mandated pursuant to an applicable statute, or applicable
regulation, standard, or order of the Industrial Welfare
Commission, the Occupational Safety and Health Standards
Board, or the Division of Occupational Safety and Health.” If the
employer does not provide an uninterrupted break, subdivision
(c) states, “[T]he employer shall pay the employee one additional
hour of pay at the employee’s regular rate of compensation for
each workday that the meal or rest or recovery period is not
provided.”
Subdivision 12(A) of Wage Order 4 requires every employer
to authorize and permit all employees to take rest periods.

4
provides, “[E]mergency ambulance employees shall remain
reachable by a portable communications device throughout the
entirety of each work shift.” If the employee is interrupted during
a break, section 887, subdivision (b), provides, “[T]hat particular
meal or rest period shall not be counted towards the meal and
rest periods the employee is entitled to during his or her work
shift.” Section 889 states that these new provisions clarify
existing law and apply to claims for alleged meal and rest period
violations pending on or filed after October 25, 2017.
As a result of these provisions, defendants filed a motion to
dismiss plaintiff’s appeal of the orders denying his class
certification and dismissing his PAGA claims on the ground that
Proposition 11 had made the appeal moot. This court agreed, and
on July 30, 2020, plaintiff’s appeal was dismissed as moot based
on the passage of Proposition 11.
Subsequently, Calleros v. Rural Metro of San Diego, Inc.
(2020) 58 Cal.App.5th 660 (Calleros) found that Proposition 11
applied retroactively.5 (58 Cal.App.5th at pp. 666–670.) Since
newly enacted section 887 expressly authorized EMT’s to be on
call during breaks, pending claims that this was a violation of the
law became moot.
Following the issuance of the remittitur, on January 13,
2021, the trial court held a case management conference. After
the trial court conferred with counsel the parties were ordered to
brief the issue of when the 13-year-old case would be subject to a
mandatory dismissal based on the failure to bring the case to

5 That court quoted this court’s order dismissing Banta’s
prior appeal to support its finding that Proposition 11 was
retroactive and rendered the claims moot.

5
trial within five years after it was commenced as required by
Code of Civil Procedure section 583.310.
At the next case management conference, the trial court did
not make a finding on the time for mandatory dismissal. Instead,
the trial court stayed the action, based on the stipulation of the
parties, until April 14, 2021, to allow for any review of Calleros
by the Supreme Court. In addition, the court authorized
defendants to file a motion for a judgment on the pleadings and
set the hearing for May 10, 2021. Trial was set for May 19, 2021.
Plaintiff did not file a motion for leave to amend his SAC,
despite the passage of Proposition 11 or the dismissal of his
appeal as moot due to Proposition 11. His operative complaint,
therefore, included only the claims that the wage statements
were not proper and that the EMT’s had been denied meal and
rest periods because they were required to remain available
during breaks.
In their motion for judgment on the pleadings, defendants
argued plaintiff’s theory had been negated by Proposition 11 and
the finding in Calleros that Proposition 11 was retroactive.
Defendants also argued that granting leave to amend would
prejudice defendants because discovery had closed more than
three years earlier and amendment would inject new issues that
would require discovery, with little time before trial.
Plaintiff made a variety of arguments in opposition. He
argued that he had not waived his right to pursue meal and rest
period violations, that this court’s decision to dismiss his appeal
as moot after Proposition 11 was approved was not the “law of
the case,” that defendants had not complied with their obligations
under the new sections, and that his pleadings were sufficient
because they include the ultimate facts needed to state his

6
claims. Plaintiff also argued that leave to amend was mandatory
if the motion was granted.
In addition plaintiff filed a motion to present PAGA
evidence based on the court’s inherent authority to reconsider its
April 10, 2018 order striking the PAGA claims, as well as a
motion in limine to exclude documents and information not
produced in discovery.
On May 10, 2021, the trial court ruled on the motion for a
judgment on the pleadings and the motion for reconsideration.
The record does not reflect that the court made a ruling on the
motion in limine.
The trial court granted defendants’ motion for a judgment
on the pleadings with regard to the meal and break claims in the
second and third causes of action and denied the motion with
regard to the fourth cause of action based on the propriety of the
wage statements. The trial court also denied plaintiff’s motion for
reconsideration.
The trial court explained that Proposition 11 established
that plaintiff’s theory on meal and rest periods was “no longer a
tenable theory of liability in the ambulance workers’ context.”
The court cited Calleros and its holding to find that, after
Proposition 11 was approved, plaintiff’s allegations that he was
denied breaks because he remained on call no longer stated a
claim for liability.
The trial court also denied leave to amend because it found
that plaintiff had failed to set forth facts that showed the
proposed amendment would cure the identified defects. The court
also found that granting leave to correct the existing causes of
action would be an idle act because, after Proposition 11, plaintiff

7
could not plead a claim that he was denied rest and meal breaks
due to being on call during his breaks.
As to plaintiff’s motion for reconsideration, the trial court
found it was untimely because plaintiff had not sought relief
diligently and had waited until the eve of trial. The court also
noted that plaintiff had not shown it would be manageable to try
the PAGA claims at a trial scheduled within nine days, given the
fact that the court needed to review information “in more than 45
million pages of data since 2006.”
Plaintiff then dismissed the remaining fourth cause of
action for wage statement violations A notice of appeal was filed
on May 28, 2021.

DISCUSSION
I. The judgment on the pleadings is appealable, but not
the denial of representative status under PAGA
We begin by noting that plaintiff’s notice of appeal is
directed at the order issued May 10, 2021. It is not directed at a
final judgment that disposed of all claims. Further, the notice of
appeal seeks review of the “denial of representative status under
[PAGA].” That ruling occurred on April 10, 2018, not on May 10,
2021, when the trial court granted defendants’ motion to dismiss
the PAGA claims. Plaintiff had already filed an appeal of that
order, which was dismissed.
At the May 10, 2021 hearing, the trial court granted
defendants’ motion for a judgment on the pleadings of the second
and third causes of action, denied plaintiff’s motion for
reconsideration of the April 10, 2018 order granting defendants’
motion to dismiss the PAGA claims, and denied defendants’

8
motion for a judgment on the pleadings of the fourth cause of
action.
This was not an appealable order because it had not
completely disposed of all of the causes of action, i.e., the fourth
cause of action remained. (Kurwa v. Kislinger (2013) 57 Cal.4th
1097, 1101 [“‘A judgment that disposes of fewer than all of the
causes of action framed by the pleadings, however, is necessarily
“interlocutory” (Code Civ. Proc., § 904.1, subd. (a)), and not yet
final, as to any parties between whom another cause of action
remains pending.’”].)
Further review of the record reveals no appealable
judgment. Three days after the May 10, 2021 hearing, plaintiff
filed a notice of dismissal of the fourth cause of action without
prejudice. Generally, a voluntary dismissal is not appealable.
(Gray v. Superior Court (1997) 52 Cal.App.4th 165, 170.)
“However, ‘“appellate courts treat a voluntary dismissal with
prejudice as an appealable order if it was entered after an
adverse ruling by the trial court in order to expedite an appeal of
the ruling.”’” (Flowers v. Prasad (2015) 238 Cal.App.4th 930,
935.)
On May 14, 2021, the trial court ordered the dismissal of
the fourth cause of action without prejudice and stated the
matter was concluded. A review of the transcript reveals that
counsel for plaintiff stated that the first cause of action had been
dismissed “a long time ago,” the second and third were resolved
by the ruling on defendants’ motion for a judgment on the
pleadings, and “the fourth one we have just dismissed. So we
intend, you know, appeal [sic] from the judgment on the
pleadings.” At the end of the hearing, the trial court observed,
“The record will reflect that the fourth cause of action has been

9
dismissed by plaintiff and the matter is now completely disposed
of subject to the Court of Appeal.”
Although plaintiff dismissed the fourth cause of action
without prejudice, we treat plaintiff’s voluntary dismissal of the
fourth cause of action as an appealable order because it was
made after the trial court had issued an adverse ruling on the
second and third causes of action, and it found at the May 14,
2021 hearing that “the matter is now completely disposed of,”
thereby permitting review of the trial court’s May 10, 2021 order
granting the judgment on the pleadings of the second and third
causes of action. Review, however, is limited to the order on the
motion for a judgment on the pleadings.
In his notice, plaintiff also sought review of the denial of
representative status under PAGA, that it occurred three years
earlier on May 10, 2018, when the court granted defendants’
motion to dismiss the PAGA claims. The only order at the
May 14, 2021 hearing that concerned the PAGA claims was the
denial of plaintiff’s motion for reconsideration of that 2018 order.
As the following shows, plaintiff cannot use the denial of his
motion for reconsideration to make an untimely appeal of the
2018 order on his PAGA claims.
An order dismissing a representative PAGA claim is
immediately appealable to the extent it effectively rings the
“death knell” of that claim. (Miranda v. Anderson Enterprises,
Inc. (2015) 241 Cal.App.4th 196, 200-203 [finding the order is
effectively a final judgment for the nonparty employees because
they can no longer assert any claims].) The “death knell” of the
PAGA claims in this case occurred on May 10, 2018, when the
trial court struck plaintiff’s PAGA claims as unmanageable.
Plaintiff filed an appeal of that order on April 25, 2018. (Banta v.

10
American Medical Responses, Inc. (July 30, 2020, B291270) app.
dism.) The order dismissing the PAGA claim was effectively the
final judgment on the PAGA claims causing plaintiff to seek
review of that order. Plaintiff did so when he sought review of the
order in his prior appeal.6
Any attempt to seek review of the April 10, 2018 order now
is untimely. Characterizing this order as an interlocutory
judgment, plaintiff sought reconsideration of that order by the
trial court. That motion was denied on May 14, 2021.
Appealability cannot be created by moving to reconsider a
nonappealable order and then appealing from the order denying
the motion. (Gassner v. Stasa (2018) 30 Cal.App.5th 346, 354-
355.) Here, the April 10, 2018, order striking the PAGA claims
was no longer appealable. Indeed, plaintiff filed a notice of appeal
in 2018. Plaintiff cannot, therefore, use the denial of his motion
for reconsideration of the April 10, 2018 order to seek review of
the decision striking his PAGA claims. Neither the April 10, 2018
order striking the PAGA claims nor the May 14, 2021 order
denying the motion for reconsideration of that prior order are
appealable. An appeal of the first order is untimely and the
second cannot be used to seek an untimely review of the first.
In addition to being an untimely attempt to seek
reconsideration after the de facto final judgment on the PAGA
claims on April 10, 2018, plaintiff’s motion to submit evidence of
PAGA claims could be denied on the separate ground that the
PAGA claims lack legal merit, as they are based on the same
theory as plaintiff’s individual claims, i.e., EMT’s were denied

6 The appeal was dismissed on July 30, 2020, because
Proposition 11 rendered the issues in the appeal moot.

11
rest and meal breaks because they had to be on call. As discussed
below, this claim is no longer a legally cognizable claim after
Proposition 11.
II. General legal principles and standard of review
The standard of review for a motion for judgment on the
pleadings is the same as for a demurrer. (Pang v. Beverly
Hospital, Inc. (2000) 79 Cal.App.4th 986, 989 (Pang ).) Under this
standard, all material facts that were properly pleaded are
deemed true, but not contentions, deductions, or conclusions of
fact or law. (Ibid.) Judicially noticed matters may also be
considered. (Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1126.) When a motion for judgment on the pleadings is
granted, we must determine as a matter of law whether the
complaint states facts sufficient to constitute a cause of action.
(Ibid.)
Where, as here, leave to amend was not granted, we must
determine whether the defect could be cured by amendment. If
the defect can be cured, the trial court committed reversible
error. The plaintiff bears the burden of proof on this issue. (Pang,
supra, 79 Cal.App.4th at p. 989.)
III. Judgment on the pleadings was properly granted
The trial court granted judgment on the pleadings of the
second cause of action for failure to provide meal breaks or
premium compensation for missed meal breaks and the third
cause of action for failure to provide rest breaks or premium
compensation for missed rest breaks.7

7 As noted above, plaintiff dismissed the first and fourth
causes of action.

12
 The operative SAC was filed on March 31, 2010. Plaintiff
alleged he was employed as a field paramedic and defendants
falsely informed their employees that special rules applied to
emergency medical providers that preclude them from having the
same legal rights as other employees to receive meal and rest
breaks.
The second cause of action alleged that defendants violated
section 512 and applicable wage orders by failing to provide meal
periods or the compensation earned by the employees as a result
of working without timely breaks. The third cause of action
alleged that defendants violated applicable wage orders by
refusing to provide rest breaks or the compensation earned by the
employees as a result of working without timely breaks.
Plaintiff incorporated allegations that specify that his claim
is based on the failure to provide an uninterrupted meal or rest
break in both causes of action. In paragraph 32, plaintiff alleged
that defendants refused to provide employees with a 30-minute
uninterrupted meal break or a 10-minute uninterrupted rest
break, as mandated by section 512, and defendants refused to
pay the premium pay required by section 226.7 for each occasion
on which employees were required to work without a full,
uninterrupted statutory rest break.
Meal breaks are required by section 512, subdivision (a),
which prohibits an employer from requiring an employee to work
for a period of more than five hours per day without providing a
30-minute meal period. The rest breaks required by IWC wage
order 9-2001 (Cal. Code Regs., tit. 8, § 11090; Wage Order 9)
mandates employers to permit all employees to take 10-minute
rest periods every four hours. These meal and rest breaks are
required to be uninterrupted by section 226.7, which prohibits an

13
employer from requiring an employee to work during a
statutorily mandated meal or rest period.
This was the law when plaintiff filed the SAC in 2010 that
regulated working conditions as an emergency medical provider.
However, eight years later, voters approved Proposition 11,
codified at sections 880 to 890. These statutes became effective on
December 19, 2018.
Section 887, subdivision (a), one of the newly enacted
provisions, states: “In order to maximize protection of public
health and safety, emergency ambulance employees shall remain
reachable by a portable communications device throughout the
entirety of each work shift.” Subdivision (b) states “[i]f an
emergency ambulance employee is contacted during a meal or
rest period, that particular meal or rest period shall not be
counted towards the meal and rest periods the employee is
entitled to during his or her work shift.” EMT’s, therefore, do not
have a right to an uninterrupted rest or meal period because they
are on call throughout their entire work shift.
Section 889 expressly made this provision retroactive:
“Notwithstanding any other provision of law to the contrary,
Sections 887 and 888 are declaratory of, and do not alter or
amend, existing California law and shall apply to any and all
actions pending on, or commenced after, October 25, 2017,
alleging a violation of Section 11090 of Title 8 of the California
Code of Regulations (Industrial Welfare Commission (IWC) Order
No. 9-2001) or any amended, successor, or replacement law,
regulation, or IWC order.” (Italics added.) Since plaintiff’s action
was pending on October 25, 2017, these newly enacted provisions
applied to his claims that defendants had not provided him with
uninterrupted meal and rest breaks.

14
 In voter materials, the Legislative Analyst described that
the act was proposed in response to the Augustus decision,
stating that “‘it appears likely that the Augustus decision will
also apply to EMTs and paramedics in the near future,’” and that
this “‘would increase costs to ambulance companies—potentially
by more than $100 million each year statewide.’” (Calleros, supra,
58 Cal.App.5th at pp. 664-665, citing the Voter Information
Guide, Gen. Elec. (Nov. 6, 2018) analysis of Prop. 11 by Legis.
Analyst, p. 64.) “The Legislative Analyst materials also stated:
‘This measure makes changes to state laws that affect private-
sector EMT’s and paramedics. . . . [¶] . . . The measure requires
EMTs and paramedics to stay on call during their whole shift. In
effect, the measure continues the industry practice of requiring
EMTs and paramedics to remain on call during breaks.’”
(Calleros, at p. 665.)
Thus, after the passage of Proposition 11, plaintiff’s claims
that he was not provided an uninterrupted rest and meal break
no longer contained sufficient facts to constitute a violation of
sections 512 and 226.7 or Wage Order 9. Newly enacted section
887 required EMT’s, like plaintiff, to be reachable by a portable
communication device during his entire work shift.
Plaintiff’s second and third causes of action are based on
the alleged violation of sections 512 and 226.7 and Wage Order 9.
Such claims must state with reasonable particularity the facts
supporting the statutory elements of the violation. (Khoury v.
Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Since
section 887 requires EMT’s to be available throughout their work
shift, plaintiff’s allegations that defendants did not provide
EMT’s with uninterrupted meal and rest breaks do not state with

15
reasonable particularity the facts showing a denial of meal and
rest periods to plaintiff.
The court’s inquiry on the motion for a judgment on the
pleadings was whether plaintiff had pleaded, with reasonable
particularity, the facts showing defendants had violated the
applicable Labor Code sections and wage orders that regulated
EMT’s. The burden is on plaintiff to establish that his pleadings
were legally sufficient. In his opposition to defendants’ motion,
plaintiff argued that defendants had to establish that they had
fully complied with all requirements for providing a legally
compliant break period. This is not correct. Plaintiff failed to
meet this burden in the SAC after Proposition 11 was approved.
On appeal, plaintiff argues that the trial court should not
have relied on this court’s dismissal of his prior appeal as the
“law of the case.” Referring to the trial court’s observation that
the Court of Appeal had “evidently rejected” plaintiff’s argument
that he could continue this litigation under an alternative theory
and that “[i]t would be anomalous for this court to find the
plaintiff’s meal and rest break claims, the same claims which
were before the Court of Appeal, are now somehow not moot.”
However, the trial court did not cite the dismissal of the
appeal as the sole basis for its decision or find that it was
required to grant defendants’ motion based on the dismissal.
Instead, the trial court noted that it would be “anomalous,” or
different from what is expected, to find that plaintiff’s claims
were valid. In addition, the trial court found that, after
Proposition 11 was passed, the claims in plaintiff’s operative
complaint were no longer tenable. The trial court discussed the
facts and holding in Calleros, found it directly on point, and
applied its holding that the new Labor Code sections were

16
retroactive. The trial court, therefore, identified multiple grounds
for granting the motion.
Finally, when reviewing the order, our review focuses on
whether the complaint states facts sufficient to constitute a cause
of action, as a matter of law. The above analysis of the plaintiff’s
pleadings shows that, as a matter of law, the plaintiff no longer
has a claim for relief based on his theory that defendants were
required to provide him with uninterrupted breaks. The trial
court, therefore, properly granted defendants’ motion for a
judgment on the pleadings of the second and third causes of
action because they do not plead sufficient facts to constitute a
cause of action for the violation of the Labor Code sections and
wage orders that regulate the meal and rest breaks required for
emergency medical technicians.
IV. Leave to amend was properly denied
The trial court did not abuse its discretion in denying leave
to amend because plaintiff failed to show a reasonable possibility
of correcting the defects by amendment in the time remaining
before trial.
It was plaintiff’s burden to show there is a reasonable
possibility of curing the defects by amendment. (Rakestraw v.
California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.)
Plaintiff must show in what manner he can amend the complaint
and how that amendment will change the legal effect of the
pleadings. (Ibid.) Nothing in the record identifies how he can
amend his pleadings and cure the defects in the SAC. As the trial
court noted, after Proposition 11, plaintiff’s theory that he
suffered damages by the denial of uninterrupted meal and rest
periods cannot be corrected by amendment.

17
 The trial court had set May 19, 2021, as the trial date and
asked the parties to brief when the five-year time period in which
to bring the case to trial expired. Granting leave to amend when
the case would be subject to a mandatory dismissal would be an
idle act and the law does not do or require idle acts. (Civ. Code,
§ 3532.) There was no abuse of discretion by the trial court in
finding that plaintiff could not correct the defects by amendment
so that the parties could prepare for a trial within the mandatory
five-year time period set by Code of Civil Procedure section
583.310.
The trial court, therefore, did not abuse its discretion when
it granted defendants’ motion for a judgment on the pleadings
without leave to amend.

DISPOSITION
The order is affirmed. Defendants are awarded costs of
appeal.

________________________
CHAVEZ, J.

We concur:

________________________
LUI, P. J.

________________________
HOFFSTADT, J.

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