Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. BC317786. Joanne B. O’Donnell, Judge. Affirmed.
Lavi & Ebrahimian and Joseph Lavi for Plaintiff and Appellant.
Ballard, Rosenberg, Golper & Savitt, Jeffrey P. Fuchsman and John J. Manier for Defendants and Respondents.
OPINION
JACKSON, J.
INTRODUCTION
Plaintiff Sonia E. Daboub (Daboub) appeals from an order dismissing her class action allegations based on collateral estoppel in an action brought on behalf of persons currently and formerly employed as card dealers at defendants’ Bell Gardens Bicycle Club Casino (Casino). We affirm.
FACTS
On June 29, 2004, Daboub filed her complaint. The complaint asserted eight causes of action: (1) failure to allow rest periods and (2) meal periods in violation of Industrial Welfare Commission Order 5-2001; (3) violation of Labor Code section 203 (failure to pay wages due to former employees); (4) violation of Labor Code section 221 (repayment of wages to employer); (5) violation of Labor Code section 351 (taking gratuity left to employee); (6) violation of Labor Code section 450 (coercing employee to patronize employer); (7) violation of Labor Code section 2802 (indemnification of employee for job-related expenditures); and (8) violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.). All the claims were purportedly on behalf of a class of current and former card dealers. The third through eighth causes of action purported to challenge the legality of the Casino’s “tip collection and distribution system,” which Daboub characterized as requiring card dealers to pay the Casino a portion of their tips “at the conclusion of each of their shifts and/or work day.”
On September 3, 2004, Casino filed a notice of related cases, stating that the instant case was related to the Lin v. Bell Gardens Bicycle Club, Inc. (Super. Ct. L.A. County, No. BC304675) case. There was no objection to the notice of related cases. In accordance with the notice, Daboub’s lawsuit was transferred to Judge Ralph Dau on September 29, 2004. The Lin complaint had been filed on October 22, 2003.
Plaintiffs included Judy Lin (Lin), Yoon Chang (Chang) and Margret Greenbach (Greenbach).
Class certification was denied in Lin on October 1, 2004 as to the tip pool claims, and it was denied without prejudice as to the meal period and off-the-clock claims. Judge Dau found that the Lin plaintiffs had failed to provide a class definition or make “even a minimal showing that the tip pool claims in this action have merit.” He further found that Lin and Chang were not adequate representatives of the Asian game dealers. Judge Dau granted Greenbach leave to refile the certification motion as to the meal period and off-the-clock claims, and he directed her to include a proposed class definition. Greenbach declined to refile the motion, and all three plaintiffs appealed the ruling. After denial of certification in Lin, Casino filed a demurrer and motion to stay in the instant action based on the Lin case. The trial court granted the stay pending the Lin appeal.
On September 27, 2006, Division One of this court issued an unpublished opinion affirming the denial of class certification (Lin v. Bell Gardens Bicycle Club, Inc. (B178704)). The court held that substantial evidence supported Judge Dau’s findings that the Lin plaintiffs failed: (1) to “provide an adequate class definition as required to establish an ascertainable class” (at p. 8) and (2) to “establish the elements of a community of interest required for class certification” (at p. 10).
On March 27, 2007, Casino filed a demurrer to the instant complaint, based in part on the premise that collateral estoppel prevented Daboub from seeking class certification. Daboub filed opposition to the demurrer, challenging the claim that collateral estoppel prevented class certification.
The trial court held a hearing on Casino’s demurrer on April 19, 2007, and issued an order on May 9, 2007, sustaining the demurrer in its entirety without leave to amend. As to the tip practices causes of action, the court explained that there is no private right of action under the relevant statutes; enforcement of the statutes is within the sole jurisdiction of the Department of Industrial Relations. As to the other causes of action, the court noted that Daboub and the class could have been parties to Lin, raised claims identical to those in Lin, and were in privity with the Lin plaintiffs. This was sufficient to apply collateral estoppel to bar Daboub’s action.
DISCUSSION
Class actions are authorized under Code of Civil Procedure section 382 where the plaintiff can establish an ascertainable class and a well-defined community of interest. To satisfy the community of interest requirement, the plaintiff must show: “(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)
“Trial courts properly and routinely decide the issue of class certification on demurrer.” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1231 (Alvarez).) The issue on demurrer is whether there exists a “‘“reasonable possibility”’” that the plaintiff can establish an ascertainable class and can plead a prima facie community of interest among putative class members. (Id. at pp. 1231-1232.)
Collateral Estoppel
The trial court relied on the Alvarez case in ruling Daboub’s causes of action were barred by collateral estoppel. The complaint in Alvarez was filed by 56 named plaintiffs on behalf of current and former area sales managers. The complaint alleged that the defendant deprived them of overtime wages and other benefits. Defendant demurred on the grounds of collateral estoppel, indicating that certification of the same class had been denied in a prior lawsuit, Duran v. Robinsons-May, Inc. (Duran). The trial court agreed with defendant and sustained the demurrer without leave to amend. (Alvarez, supra, 143 Cal.App.4th at pp. 1227-1228, 1229-1230.)
Division Four of this district affirmed. Plaintiffs had argued that they were not in privity with the Duran plaintiffs, and the identical issue had not been decided. The court noted that the Duran complaint and the Alvarez complaint alleged defendant engaged in the same general misconduct concerning policies and procedures. Both complaints alleged that the misconduct took place during approximately the same time period. The parties sought certification of the same class of employees. Although the causes of action were not identical, “collateral estoppel does not depend on the legal theory used but the primary right asserted. [Citations.] The primary right asserted in each case was the right to litigate claims in a class action lawsuit.” (Alvarez, supra, 143 Cal.App.4th at p. 1237.)
The collateral estoppel doctrine precludes relitigation of issues that were argued and resolved in a prior proceeding. “In order to apply this principle: (1) the issue must be identical to that decided in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) the issue must have been necessarily decided in the prior proceeding; (4) the decision must have been final and on the merits; and (5) preclusion must be sought against a person who was a party or in privity with a party to the prior proceeding.” (Alvarez, supra, 143 Cal.App.4th at p. 1233.)
Analyzing these factors, the court concluded that collateral estoppel applied. “As [plaintiffs] would have enjoyed the fruits of a favorable outcome, fairness dictates that they should be bound by the effect of the decision against them.” (Alvarez, supra, 143 Cal.App.4th at p. 1238.)
The Alvarez plaintiffs also asserted that public policy demands that the doctrine of collateral estoppel should not be applied in class action matters. The court rejected this argument. “Put simply, if appellants are correct, every motion denying class certification could be relitigated until the desired result was reached. The losing class plaintiff could merely insert the name of a different individual to be the potential class representative.” (Alvarez, supra, 143 Cal.App.4th at p. 1240.) The court also noted that class action litigation is a product of the court of equity and it would be unfair to subject a defendant “to a revolving door of endless litigation.” (Ibid.)
1. Issue identical to that decided in prior proceeding.
Daboub contends that the issues are not identical in Lin and the instant case. We disagree.
The issue in Lin was the right of putative members of the same class—Casino’s card dealers— to litigate their tip pool, meal period and related claims on behalf of the class during a similar time period. In Daboub’s opposition to Casino’s demurrer, she indicated the following: “The primary right at issue in the present case is also the right of the potential class to litigate claims in a class action lawsuit.”
Daboub submits that the issue of adequacy of representation, i.e., the adequacy of the named plaintiffs to represent the class, is not identical in Lin and the instant case, and therefore collateral estoppel cannot apply. The question is not whether there are different issues in the two cases, however, but whether the primary rights are identical. “[C]ollateral estoppel does not depend on the legal theory used but the primary right asserted. [Citations.]” (Alvarez, supra, 143 Cal.App.4th at p. 1237.)
The recent case of Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 does not compel a different conclusion. In Bufil, the Court of Appeal reversed a trial court ruling denying class certification in a wage/hour lawsuit based on collateral estoppel. The court noted that “[u]nlike Alvarez, the class that Bufil asserts is not identical to the class asserted [in the prior lawsuit, hourly employees denied the meal and rest breaks]. Rather, it is a distinct subclass restricted to hourly employees . . . with the designation of not having taken a meal period because the employee was the only employee in the store or was supervising a trainee who could not be alone.” (Id. at p. 1203.)
In addition to narrowing the class definition, Bufil narrowed the issues involved to a legal question whether the two circumstances under which class members were denied meal and rest breaks violated the applicable regulation. (Bufil v. Dollar Financial Group, Inc., supra, 162 Cal.App.4th at p. 1203.) Since the narrowing of the class and issues involved avoided the problems of determining liability present in the prior case, the court concluded that collateral estoppel did not apply to bar the litigation. (Id. at p. 1204.)
Daboub argues that, as in Bufil, she should have been permitted to amend her complaint to redefine her class in order to avoid dismissal of the class action allegations based on collateral estoppel. However, Daboub does not specify how she would amend her complaint and how the amendment would state a cause of action, i.e., establish an ascertainable class and a well-defined community of interest, as well as avoid collateral estoppel. In the absence of a showing that Daboub could, in fact, amend to avoid dismissal of the class action, she is not entitled to reversal to allow her the opportunity to amend. (Cf. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 18.)
Daboub and the Lin plaintiffs asserted the same primary right of the same class of Casino card dealers to litigate their tip pool, meal period and other claims. Identical issues thus are involved for collateral estoppel purposes.
In this respect, our recent opinion in Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497 is distinguishable. In Johnson, we found no identity of issues, in that, due to a change in the law, the issue on which class certification previously was denied was “materially different” from the issue raised in Johnson. (Id. at pp. 1514-1515.) Additionally, the previous litigation involved the question of certifying a nationwide class, while Johnson involved a subclass of California plaintiffs. (Id. at pp. 1515-1516.) Here, by contrast, it is the same law and the same class of plaintiffs at issue.
2. Issue litigated, necessarily decided in the prior proceeding, and on the merits.
Daboub contends that the issue of an adequate class definition to establish an ascertainable class or to establish the elements of a community of interest necessary for class certification was not actually litigated or necessarily decided on the merits in Lin. Again, we disagree.
In Daboub’s view, the issues were not actually litigated or necessarily decided on the merits in Lin because that case “never had an adequately defined class” and because “the proposed class representatives are different, with . . . Daboub not sharing the Lin plaintiffs[’] deficiencies.” However, the adequacy of the class definition and the class representatives were the precise issues decided in Lin. The court found “substantial evidence in the record supports the trial court’s ruling that plaintiffs failed to provide an adequate class definition as required to establish an ascertainable class.” (Lin v. Bell Gardens Bicycle Club, Inc., supra, B178704, at p. 8.) The court also found “substantial evidence supporting the finding that plaintiffs failed to meet their burden of establishing the two elements required for certification of a class action—an ascertainable class [citation] and a well-defined community of interest among the class members [citation].” (Id. at p. 11.)
In In re Bridgestone/Firestone, Inc., Tires Products (7th Cir. 2003) 333 F.3d 763, the court stated that absent class members are bound by a certification denial, provided that the named representatives furnished adequate representation. (Id. at pp. 768-769.) The court in Alvarez, supra, 143 Cal.App.4th 1223 agreed: “When a prevailing party seeks to enforce a ruling denying class certification against an absent putative class member, the general principles of collateral estoppel apply.” (Id. at p. 1236.)
In this context, adequacy of representation means that the party in the prior action “‘“had the same interest as the party to be precluded, and . . . had a strong motive to assert that interest.”’” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 150, italics omitted.) Inasmuch as plaintiffs in Lin adequately represented Daboub and the question of class certification was resolved on its merits, Daboub is bound by that decision. (Alvarez, supra, 143 Cal.App.4th at p. 1236; In re Bridgestone/Firestone, Inc., Tires Products, supra, 333 F.3d at pp. 768-769.)
See also the discussion in section 3, post, regarding the adequacy of the representation by the Lin plaintiffs.
Moreover, Casino’s notice of related cases allowed Daboub the opportunity to intervene or respond to the Lin lawsuit if she believed she was not adequately represented in that lawsuit. The notice of related cases stated the following: “Although the named Plaintiffs in the two actions are different, [Daboub] is a member of the class alleged in the 2003 Complaint. Likewise, the Defendants in both actions are the same. In addition, both actions allege the identical facts, and assert the same essential causes of action.” (Fn. omitted.)
Daboub’s reliance on Schaefer/Karpf Productions v. CNA Ins. Companies (1998) 64 Cal.App.4th 1306 is misplaced. In Schaefer/Karpf Productions, plaintiff obtained a judgment against an insured for damages resulting from injury. The insured assigned its rights under the policy to plaintiff, and plaintiff brought an action against the insurer to recover the amount of the judgment plus damages for bad faith. The trial court granted summary judgment in favor of the insurer, ruling that the insurer was not bound by the determination in the prior action that plaintiff’s damages constituted “‘property damage,’” which was covered under the insured’s policy, in that the insurer was not a party to that action. (Id. at p. 1311.)
On appeal the court found that the insurer was not collaterally estopped by the prior judgment to claim that there was no “‘property damage’” and therefore no insurance coverage for the insured. While an insurer who refuses to defend an action generally is bound by the judgment in the action, it is bound only as to factual findings essential to the judgment of liability and damages. (Schaefer/Karpf Productions v. CNA Ins. Companies, supra, 64 Cal.App.4th at p. 1313.) In general, an action by a third party against an insured resolves questions of liability and damages only, not insurance coverage. (Ibid.) The court held that although the question whether plaintiff “may have suffered property damage for purposes of establishing liability” was decided in plaintiff’s lawsuit against the insured, the issue of whether that property damage was covered by the carrier’s policies “was not decided in the underlying action.” (Id. at p. 1314, fn. omitted.) Since the question of insurance coverage was not actually litigated or necessary decided in the liability action, the insurer was not collaterally estopped to deny coverage. (Ibid.)
While Schaefer/Karpf Productions did not involve identical issues—liability and damages versus insurance coverage—the instant case does involve the identical issues of the rights of the same class of Casino card dealers to litigate their tip pool, meal period and other claims. Schaefer/Karpf Productions thus does not compel a conclusion that collateral estoppel does not apply.
3. Preclusion against a person who was a party or in privity with a party to the prior proceeding.
Daboub contends that she was not in privity with the Lin plaintiffs because the finding in Lin determined that the plaintiffs were not fit to represent the class. Daboub fails to note that the concept of adequacy of representation and virtual representation are different.
As noted in Alvarez, supra, 143 Cal.App.4th at page 1236, “[c]ollateral estoppel requires that the party in the earlier case have interests sufficiently similar to the party in the later case, so that the first party may be deemed the ‘virtual representative’ of the second party.” The focus “‘is not on a concept of identity of parties, but on the practical situation.” (Ibid.) That is, the question is whether the second party’s interests were represented in earlier lawsuit, so that it is fair to bind the second party to the result obtained in the earlier lawsuit. (Id. at pp. 1236-1237.)
“In analyzing the facts, we conclude the [Lin] plaintiffs were the ‘virtual representatives’ of [Daboub]. The only difference we can discern between the parties is the name of the representative plaintiff[s]. The interested parties[ and] their claims . . . are the same. We also examine whether the first party had the same interest as the precluded party and the motive to present the same claim. [Citation.] The [Lin] plaintiffs had a strong motive to assert the same interest as [Daboub], as each group’s goal was identical—each wanted its class certified. . . . [T]he [Lin] plaintiffs had a full opportunity to present their case. The circumstances are such that [Daboub] should reasonably have expected to be bound by the [Lin] decision. As [Daboub] would have enjoyed the fruits of a favorable outcome, fairness dictates that [she] should be bound by the effect of the decision against [her].” (Alvarez, supra, 143 Cal.App.4th at p. 1238.) The Lin plaintiffs thus served as Daboub’s virtual representatives, and she was in privity with them.
Daboub argues, however, that the decision by one of the Lin plaintiffs, Greenbach, not to amend indicates that she was an unfit class representative. The question is not whether Greenbach was an “unfit” class representative, but whether she adequately represented the class by raising the pursing claims which members of the class reasonably could have expected to be raised in their behalf and which, if successful, would have afforded them the damages they reasonably could have expected to recover. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464.) That Greenbach chose to appeal the trial court’s decision in Lin rather than to amend her complaint (Lin v. Bell Gardens Bicycle Club, Inc., supra, B178704, at p. 4) does not, in and of itself, establish inadequate representation for purposes of collateral estoppel (Alvarez, supra, 143 Cal.App.4th at p. 1236; In re Bridgestone/Firestone, Inc., Tires Products, supra, 333 F.3d at pp. 768-769).
As noted in Aronow v. LaCroix (1990) 219 Cal.App.3d 1039, we “do not undertake to measure the adequacy of the representation on the basis of an assessment of the performance of the losing party’s counsel.” (Id. at p. 1049.) That Greenbach’s counsel made a tactical decision with which Daboub’s disagrees, or that Daboub would have handled the litigation differently, does not establish inadequate representation. (Ibid.; see also California Physicians’ Service v. Aoki Diabetes Research Institute (2008) 163 Cal.App.4th 1506, 1522-1523.)
In summary, because plaintiffs in Lin were the virtual representatives of Daboub, she is in privity with them. That they ultimately were determined not to be adequate class representatives does not defeat the finding of privity. (Alvarez, supra, 143 Cal.App.4th at pp. 1236-1238.) Neither is the privity element defeated because Greenbach chose to purse her claims in a manner that proved unsuccessful. (Id. at p. 1238.)
Public Policy
Daboub contends that to apply the doctrine of collateral estoppel would be unfair and undermine public policies. Casino counters that Daboub failed to make the public policy argument in the trial court and has waived the argument for appellate purposes. (Saret-Cook v. Gilbert, Kelly, Crowley and Jennett (1999) 74 Cal.App.4th 1211, 1227.) Even if the argument has not been waived, it is not persuasive.
Daboub states that the two most fundamental policy considerations underlying collateral estoppel—promotion of judicial economy and protection of litigants from unnecessary litigation—are not furthered by imposing collateral estoppel in the instant case. (Zapata v. Department of Motor Vehicles (1991) 2 Cal.App.4th 108, 115; Miller v. Superior Court (1985) 168 Cal.App.3d 376, 385-386.) However, as stated in Alvarez, supra, 143 Cal.App.4th at page 1240, “[i]t is manifestly unfair to subject [defendant] to a revolving door of endless litigation. In cases, such as this one, where a party had a full opportunity to present his or her claim and adequately represented the interests of a second party who seeks the same relief, principles of equity, ‘“[p]ublic policy and the interest of litigants alike require that there be an end to litigation.” [Citation.]’ [Citation.]”
Daboub also contends that the Alvarez decision “does not comport” with the Supreme Court’s decision in Gentry v. Superior Court (2007) 42 Cal.4th 443. Gentry did not suggest that collateral estoppel was inapplicable to class action issues. Rather, the issue in Gentry was class arbitration waivers. The court stated that trial courts should not enforce contractual waivers in cases where “class arbitration would be a significantly more effective way of vindicating the rights of affected employees than individual arbitration.” (Id. at p. 450.) The application of collateral estoppel to prevent multiple attempts to bring a class action lawsuit raising the same claims is not equivalent to the use of contractual provisions to waive entirely the right to bring a class action lawsuit.
Changed Circumstance
Finally, Daboub contends that the instant case presents a different proposed class representative than in Lin, where the proposed class representatives did not have a realistic opportunity to present to the court Daboub’s suitability as a class representative. Daboub argues this is a changed circumstance that would bar the application of collateral estoppel.
Casino again claims that this is an argument that Daboub failed to assert in the trial court, and it is waived for appellate purposes. (Saret-Cook v. Gilbert, Kelly, Crowley and Jennett, supra, 74 Cal.App.4th at p. 1227.) Regardless, the argument is without merit.
Daboub relies on the case of Pacific Tel. & Tel. Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133. The case is distinguishable. In Pacific Tel. & Tel. Co., the court held that res judicata and collateral estoppel were “no longer effective” due to a fundamental change in circumstances: telephone service in California had become “‘a matter of state concern’” rather than a local concern. (Id. at p. 158.) In discussing changed circumstances, the court stated that “[a] change in the law creating an altered situation is such a change of circumstances.” (Ibid.) There is no such change of circumstance with respect to the subject matter of the litigation in the instant case that would preclude the application of collateral estoppel.
Moreover, after Daboub filed this case, Casino filed a notice of related cases, stating that the instant case was related to the Lin case, and Daboub’s lawsuit was transferred to the same court. In ruling in Casino’s favor, the court noted that Daboub and the class could have been parties to Lin. That Daboub chose not to intervene in Lin does not make her subsequent attempt to represent the class a changed circumstance.
Leave to Amend
At oral argument, Daboub argued that she should have been granted leave to amend her complaint, in that she could amend her complaint to state a cause of action. We gave her the opportunity to file a supplemental brief setting forth with specificity the manner in which she could amend her complaint to establish an ascertainable class and a well-defined community of interest. We gave Casino the opportunity to file a supplemental brief addressing whether plaintiff should be allowed to amend her complaint or whether any amendment would be futile.
In her supplemental brief, Daboub argues that the complaint as it stands now states a cause of action. She adds that, “[t]o the extent that [her] current proposed class definition . . . might be viewed as overly sparse,” she has proposed amendments to the complaint. These proposed amendments add detail to her class definitions.
Daboub fails, however, to address the issue of collateral estoppel or explain how her proposed amendments overcome it. For example, her meal period class includes all dealers who worked at the Casino from June 29, 2000 to July 29, 2008 who were required to remain on Casino’s premises throughout their shifts. This class clearly includes dealers represented in Lin.
In both her meal period and rest period classes, Daboub also fails to address the distinction between poker dealers and Asian games dealers or show how she can adequately represent both. As in Lin, this defeats Daboub’s attempt to establish the “community of interest required for class certification.” (Lin v. Bell Gardens Bicycle Club, Inc., supra, B178704, at p. 10.)
Daboub also includes a class for her tip pooling claims. As Casino points out in its supplemental brief, the trial court sustained Casino’s demurrer to the tip pooling causes of action on the ground there is no private right of action under the relevant statutes. Daboub makes no attempt to demonstrate that this ruling was incorrect.
In sum, Daboub has failed to demonstrate that, if given the opportunity, she can amend her complaint to establish an ascertainable class and a well-defined community of interest, i.e. to state a cause of action for a class action.
DISPOSITION
The order is affirmed.
I concur: ZELON, J.
PERLUSS, P. J., Concurring.
CONCURRING OPINION
PERLUSS, P. J.
In light of Taylor v. Sturgell (2008) ___ U.S. ___ [128 S.Ct. 2161, 171 L.Ed.2d 155] I have serious reservations about the propriety of applying the doctrine of collateral estoppel to bar absent putative class members from seeking class certification following the denial of a certification motion in an earlier lawsuit, at least when the basis for the earlier determination was that the named representatives could not adequately represent the putative class. (See Johnson v. Glaxosmithkline, Inc. (2008) 166 Cal.App.4th 1497, 1510-1511, fn. 8.) Nonetheless, I agree under existing California law the trial court in this case properly applied collateral estoppel to preclude relitigation of the class action determination affirmed in Lin v. Bell Gardens Bicycle Club, Inc. (Sept. 27, 2006, B178704) [nonpub. opn.] and to dismiss the class action allegations in Sonia E. Daboub’s complaint. I also agree, unlike the circumstances in our recent decision in Johnson v. Glaxosmithkline, Inc., and the First District’s decision earlier this year in Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, neither Daboub’s complaint nor her proposed amendments sufficiently differentiate the issues she raises from those actually and necessarily litigated and finally decided in Lin to avoid application of collateral estoppel. Accordingly, I agree the trial court’s order should be affirmed.