Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. BD 426693 Elizabeth R. Feffer, Judge.
Buter, Buzard, Fishbein & Royce and Gary Fishbein for Appellant.
Hugh A. Lipton; and Robert Schibel for Respondent.
FLIER, J.
Kevin J. Berman appeals from the trial court’s order denying his motion to modify a spousal support obligation to his former wife, respondent Cathy Berman. Appellant contends the trial court abused its discretion in finding there was no change in circumstances to warrant modification of spousal support and in concluding the equities in any case tipped in favor of respondent. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
1. Spousal Support Order
Appellant and respondent married in February 1974 and separated in May 2005. Their marriage was dissolved in December 2006 with reserved issues. In February 2007, appellant was ordered to pay respondent interim spousal support of approximately $13,400 a month.
2. Motion for Modification of Spousal Support
On April 14, 2008, appellant filed an order to show cause seeking modification of the spousal support order.
In support of his motion for modification, appellant filed a declaration stating he was in the business of providing security for private residences and individuals. As of February 2007, his business had five clients. On March 17, 2008, appellant’s two largest clients informed him they were ending their relationship with him. One client had been appellant’s customer since almost the inception of his business. That client had served as a referral conduit for most of appellant’s other clients. The second client started as a temporary customer, but the assignment turned out to be substantial and the job had lasted longer than expected.
Appellant declared the two clients who left generated about 78 percent of his revenue. Their departure left him with only three remaining clients generating about $56,000 per month in net income. Appellant stated he had to lay off 23 employees and currently retained only three full-time and nine part-time employees as a result.
Appellant asserted he could not continue to pay respondent the level of support ordered by the court. He noted that respondent had made no effort to seek gainful employment as the court had warned her to do.
Appellant’s income and expense declaration claimed his income the previous month was $10,000, and his average monthly income for 2007 was about $13,000, with an additional nontaxable pension benefit of about $2,300 per month. Appellant declared he had total monthly household expenses of more than $28,000.
Appellant’s income and expense declaration indicated he also had substantial assets in form of stock, equity in his residence and other “non-liquid” assets.
Appellant’s accountant provided a declaration stating the business’s total gross monthly income after the two clients terminated in March 2008 was about $56,000, and the gross monthly payroll was about $35,000, not including appellant’s normal salary of $10,000 a month. Appellant had recurring costs including insurance of about $11,000 a month, leaving appellant with less than $10,000 to pay his fixed expenses. The accountant stated that appellant additionally received about $1,500 in a nontaxable pension check from the Torrance Police Department. The accountant indicated that appellant’s business and household expenses exceeded incoming cash by about $350 a month.
3. Opposition to Motion for Modification of Spousal Support
In opposition to the order to show cause, respondent declared that throughout the parties’ marriage clients and employees had come and gone without any significant impact upon the business. Respondent stated that appellant had recently purchased a new Range Rover and a Prius, taken multiple trips and had use of a Jonathan Club membership. While appellant continued to live in the spacious family home with no change in his lifestyle, respondent was renting a small residence furnished with only a bedroom set, a television and an ottoman she had been allowed to take from the family home.
Respondent’s income and expense declaration indicated she was 55 years of age, was not employed and last worked as a compensation claims examiner/supervisor in 1990. Respondent stated she was going through rehabilitation and had no transportation to seek work having no funds to repair her car.
Respondent’s certified public accountant declared he had attempted to verify appellant’s assertions regarding appellant’s claimed reduction in income, but the accountant’s attempts to obtain even basic information with respect to the nature, extent and history of appellant’s clients had consistently been met with refusal due to the alleged “confidential” nature of appellant’s business.
4. Hearing, Voluntary Settlement and Deal Memorandum
The trial court heard respondent’s order to show cause regarding modification of spousal support in May 2008. The court declined to grant respondent pendente lite relief. Instead, the court set the matter to be heard in July 2008 simultaneously with the bifurcated issue of permanent support.
On June 3, 2008, the parties participated in a voluntary settlement conference. The settlement conference culminated in a deal memorandum, which the parties signed on the same day, June 3, 2008. Under the deal memorandum, appellant agreed to pay respondent spousal support of $9,500 a month starting on June 15, 2008. Respondent in turn acknowledged that appellant was current on all support payments.
Respondent also agreed under the deal memorandum not to seek a modification of spousal support unless appellant’s annual income from all sources exceeded $330,000. She further agreed that if respondent’s annual income should exceed $400,000, she would not ask for a modification of spousal support based on any income in excess of that sum. The deal memorandum recites that “[appellant] contends that his current income from all sources is $22,913 per month.” The parties agreed that if appellant’s income fell below that amount, he could seek to modify spousal support.
5. Judgment on Reserved Issues
In early February 2009, the parties executed a stipulated judgment incorporating the provisions of the deal memorandum. The trial court approved and signed the stipulated judgment on March 6, 2009.
According to appellant, the delay in entering judgment purportedly was the result of issues related to the irrevocable nature of a trust rather than spousal support.
Paragraph 26 of the stipulated judgment stated that both parties “waived the right to appeal, the right to request a statement of decision, and the right to move for a new trial or reconsideration” and the cause could be tried as an “uncontested matter.”
6. Second Motion for Modification of Spousal Support
The judgment on reserved issues included an order directing appellant to pay monthly spousal support of $9,500. On April 3, 2009, about a month after entry of the judgment on reserved issues, appellant filed another motion for modification of spousal support requesting the trial court to decrease spousal support according to proof.
Appellant’s declaration in support of this motion asserted that he was unable to meet the current spousal support ordered by the court. Appellant stated that when he entered into the deal memorandum in June 2008, “my monthly income was $22,913 and not sufficient to justify a support award to Respondent of $9[, ]500 per month. Nevertheless, I agreed to pay a higher sum in order to settle, because I hoped my income would increase and[] because I could modify if my income did not increase. Unfortunately, my income has not increased....”
In this declaration, appellant made an oblique reference to a “one time non-recurring severance” he received “as discussed in [forensic accountant] Michael Miskei’s declaration.” Miskei’s accompanying declaration noted that he inspected appellant’s records to determine the net income of appellant’s business and that the records showed appellant had received a one-time payment in July 2008 of $170,000 from one of his two lost clients. Miskei stated he determined appellant’s current monthly cash flow to be $10,284 for the eight months ending in February 2009.
7. Opposition to Second Motion for Modification of Spousal Support
Respondent opposed appellant’s second motion to modify spousal support. She declared, “I agreed to a lower long term support figure ($9,500) as opposed to the temporary support of $16,000 [sic] because [appellant] already had claimed he had lost his 2 biggest clients.” She noted appellant had failed to include any $170,000 one-time payment in his income figures, which otherwise would have resulted in a current monthly income of over $14,000 a month instead of the claimed $10,000 a month. Respondent argued there had been no substantial change of circumstance during the two-month period since entry of judgment.
Moreover, respondent argued, appellant had not changed his lavish lifestyle even after the purported loss of his two most important clients, and it was impossible to verify appellant’s claims of reduced income because he continued to claim the information concerning his clients was confidential.
Appellant’s arrangements with his clients apparently were all oral.
8. Trial of Spousal Support Issue
Appellant’s second motion for modification of spousal support came on for a one-day trial on June 17, 2009. The court heard oral testimony and received written exhibits in evidence.
A. Appellant’s Evidence
Miskei testified that in January and February 2008, prior to the loss of the two major clients, appellant was making more than $300,000 per month. In March and April 2008, after the loss of one client, revenues dropped by one half. After the loss of the second client in May, there was an additional drop-off in revenues of more than $100,000 per month.
Miskei concluded appellant’s gross cash flow for the 12 months that ended April 30, 2009, was $128,000, for an average monthly cash flow of about $10,700. He testified that if respondent’s expert had excluded the one-time payment of $170,000 in her calculations (see post), she would have come to the same conclusion as Miskei regarding average monthly cash flow.
Miskei admitted that the $170,000 payment was first deposited into appellant’s personal account before it was deposited into his business accounts.
Appellant testified that in January 2008 his business had four clients. In March 2008, he lost two clients, one of whom had been with him for about 20 years and the other about two years. When the two clients left, they took away about 60 or 70 percent of the revenue, which appellant was not able to replace. Appellant stated that one of the clients wished to retain some of appellant’s existing employees; appellant and the client therefore came to an agreement that the client would pay appellant $10,000 for each employee that remained with the client for 90 days. The client ultimately retained 17 of appellant’s former employees for that period and made a one-time payment to appellant of $170,000. Appellant indicated the agreement was not in writing and the client made no additional payments to him.
On cross-examination, appellant admitted his prior April 2008 declaration failed to disclose the agreement with the former client.
B. Respondent’s Evidence
Terry Hargrave, respondent’s expert, determined that for the 16-month period ending April 30, 2009, appellant’s monthly cash flow was about $54,500. For the 12 months ending April 30, 2009, his monthly cash flow was about $25,000. In 2008, appellant had monthly cash flow of about $57,500. Hargrave included the $170,000 payment in her calculations because she believed appellant would be able to replace his lost clients. Hargrave found no documentary evidence the $170,000 payment was a “severance” payment or was required by any contract.
9. Denial of Second Motion for Modification
Based on the evidence presented, the trial court ruled there was no sufficient change in circumstances warranting modification of the existing spousal support order. The court found that the purported changed circumstance was a loss of income already known to appellant in April 2008. Specifically, appellant knew in March 2008 that he had lost his two largest clients, and his April 2008 declaration had referred to this loss. Further, appellant had known of the loss when he entered into the deal memorandum in June 2008 that resulted in the judgment on reserved issues that was eventually signed in February 2009 and entered in March 2009. Appellant never disclosed the possibility of receiving additional income from the former client, either in his April 2008 declaration or the June 2008 deal memorandum. The court found appellant’s failure to mention the possibility of receiving the $170,000 to be a “significant omission.” Moreover, the court also noted that appellant had initially deposited the $170,000 payment into his personal account when he first received it. The court additionally found it was in the nature of appellant’s business for his income to fluctuate over time, and the fluctuation of appellant’s income was not a change of circumstances.
Referring to that circumstance, the trial court stated appellant had mentioned for the first time during his testimony that the client took 17 of his employees, somewhat inaccurately recounting that appellant had testified that the client was “going to pay I believe $10,000 a month for up to 90 days” for each of the 17 employees. (Italics added.) Although the trial judge misrelated how the figure was calculated, she accurately noted that the total amount appellant received was $170,000.
Because the trial court found there was no change in circumstances, it concluded it was not required to do an analysis under Family Code section 4320. Even so, the court noted that subdivision (n) of section 4320 would require the court to look at equitable factors, and considerations of equity would tip the scale in respondent’s favor in any event, given appellant’s failure to disclose receipt of the $170,000 and his initial deposit of the sum into his personal account.
All further statutory references are to the Family Code unless noted otherwise.
After orally ruling on June 17, 2009, the trial court directed counsel for respondent to prepare a written order and to submit it to opposing counsel for approval as to form and content.
10. Order Denying Second Motion for Modification of Spousal Support
Respondent served a proposed written order upon appellant who filed objections to the order on July 7, 2009. Simultaneously, appellant purported to file objections to the court’s “oral statement of decision.”
Because trial was concluded in one calendar day and there is no indication appellant requested a statement of decision “prior to the submission of the matter for decision” (Code Civ. Proc., § 632), the court was not obliged to issue any statement of decision. Appellant’s after-the-fact attempt to recast the court’s oral comments as a “statement of decision” is disingenuous. In any case, we review the trial court’s ruling and not the reason for the ruling. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; Sabi v. Sterling (2010) 183 Cal.App.4th 916, 944.)
The court signed respondent’s proposed order denying appellant’s motion to reduce spousal support. The order indicated the court found no substantial change of circumstances from the June 2008 deal memorandum, which the court found was merged into the judgment entered on March 6, 2009. The court further found that appellant failed to disclose in his April 2008 declaration filed with the court the potential of income to be received from a former client in July 2008.
This timely appeal followed.
CONTENTIONS
Appellant contends the trial court abused its discretion in (1) failing to do a section 4320 analysis to determine whether there was a change in circumstances warranting modification of spousal support; (2) finding there was no change in circumstances; (3) failing to address the failure of appellant’s expectation he would make up lost business as a change in circumstance; (4) failing to address respondent’s failure to make reasonable good faith efforts to become self-supporting as a change of circumstance; and (5) concluding the equities tipped in favor of respondent because of appellant’s failure to disclose in his April 2008 declaration the potential of income to be received from a former client. All of these contentions have as their root the assertion that the trial court’s findings are not supported by substantial evidence. Appellant’s arguments constitute a thinly veiled invitation for this court to reweigh the evidence. This, we decline to do.
STANDARD OF REVIEW AND GOVERNING LAW
We are guided by well-established principles. The lower court’s judgment or order is presumed correct. (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898; see also Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We thus accept as true all evidence supporting the trial court’s findings, resolve all conflicts in the evidence in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the judgment. (In re Marriage of Rising (1999) 76 Cal.App.4th 472, 474, fn. 2 (Rising).)
A motion for modification of spousal support may be granted “only on a showing of a material change in circumstances after the last order.” (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575 (Tydlaska); see also In re Marriage of West (2007) 152 Cal.App.4th 240, 246 (West).) Whether modification of a spousal support order is justified rests in the trial court’s broad discretion. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412 (Biderman).) The trial court’s decision will not be reversed on appeal if there is substantial evidence to support it. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235 (Shaughnessy).) Such an order is proper so long as the court exercises its discretion along legal lines. (Rising, supra, 76 Cal.App.4th at p. 478.)
In exercising its discretion whether to modify a spousal support order, “the trial court must consider and weigh all of the circumstances enumerated in [section 4320], to the extent they are relevant to the case before it.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302 (Cheriton), italics omitted and added; see West, supra, 152 Cal.App.4th at p. 247; Shaughnessy, supra, 139 Cal.App.4th at p. 1235.)
As Cheriton notes, under section 4320 the earning capacity of each party sufficient to maintain the marital standard of living is the reference point against which statutory factors, including the following, are weighed: contributions to the supporting spouse’s education, training or career; the supporting spouse’s ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets of each party; the duration of the marriage; the opportunity for employment without undue interference with the interests of dependent children in custody of the party; the age and health of the parties; tax consequences; the balance of hardships to each party; and the goal that the supported party be self-supporting in a reasonable period of time. (Cheriton, supra, 92 Cal.App.4th at pp. 303-304; see § 4320.) In addition, subdivision (n) of section 4320 provides the court may also consider any other factors it deems to be just and equitable. (Cheriton, supra, at pp. 303-304.)
DISCUSSION
In moving for modification of spousal support in April 2009, appellant basically cited only two circumstances he claimed had changed: (1) his failed expectation that he would make up the loss of income that resulted from the loss of his two largest clients, and (2) respondent’s failure to make reasonable good faith efforts to become self-supporting.
As to appellant’s failed expectations, appellant stated that when he entered into the deal memorandum in June 2008, he was “hopeful” his income would increase. He indicated the parties had “built in” his ability to modify spousal support if his income fell below a certain level. Appellant specifically noted it was his assertion at the time, i.e., June 2008, that his monthly income was $22,913 and “not sufficient to justify a support award to Respondent of $9[, ]500 per month.” He asserted, “Nevertheless, I agreed to pay a higher sum in order to settle, because I hoped my income would increase and[] because I could modify if my income did not increase.” Appellant claimed his income did not increase but rather decreased and cited his accounting expert’s declaration as proof of this fact.
As to respondent’s failing to become self-supporting, appellant pointed to a provision in the judgment on reserved issues warning respondent that her failure to make reasonable good faith efforts “may be one of the factors considered by the court as a basis for modifying or terminating spousal support.” (See In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712.) Appellant’s declaration reminded the court that he had previously tried to have respondent vocationally examined, but she failed to appear for the evaluation on two prior occasions. Appellant stated that he was unaware of any attempt by respondent to obtain employment since their separation in May 2005.
In ruling that appellant had not made an adequate showing of a material change in circumstances, the trial court rejected appellant’s assertions. In so ruling, the court did not err.
1. Proper Analysis by the Trial Court
Appellant contends the trial court did not consider the section 4320 factors, pointing to the court’s oral comments in issuing a ruling that it was not required to do so and was not doing so. Appellant places too much emphasis upon the court’s informal oral comments.
First, although appellant asserts to the contrary, the court did not purport to be issuing an oral statement of decision, as no party had requested one prior to the submission of the case for decision. Second, it is clear from the context of the court’s comments it made a determination based on the evidence presented that appellant had failed to meet his burden of showing there was any material change of circumstances. (Tydlaska, supra, 114 Cal.App.4th at p. 575 [moving party has the burden of showing material change of circumstances since last order was made].) In particular, the court found that the judgment on reserved issues had been entered barely a month before appellant filed his second motion for modification of spousal support and there was no material change in the interim. Finally, at the time appellant filed his first motion for modification of spousal support in April 2008, appellant had known for a month that his two major clients were terminating their arrangement. Appellant most definitely knew of this lost business when he signed the deal memorandum in June 2008.
Citing Bratnober v. Bratnober (1957) 48 Cal.2d 259 (Bratnober), appellant contends a change of circumstances was demonstrated by evidence of failed expectations regarding the ability to replace lost clients. Appellant, however, reads too much into Bratnober, in which the court merely held that “the question of reasonable expectations is material and a failure to realize them may constitute a change of circumstances justifying modification of the order.” (Id. at p. 263, italics added.) In so holding, the Supreme Court held the trial court did not abuse its discretion in reducing a former husband’s spousal support obligation based on failure of his reasonable expectation of future salary increases. (Id. at p. 264.)
In the present case, unlike in Bratnober, the trial court determined appellant’s expectations of regaining lost business was not a change of a material circumstance, and we cannot say the court’s finding was an abuse of discretion as a matter of law. Nor can we on the record find this determination was not supported by substantial evidence. Appellant had known since March 2008 that he had lost the two clients. We can presume he also knew that those clients comprised 78 percent of his revenue. Nevertheless, appellant entered into the deal memorandum in June 2008, agreeing to pay respondent support of $9,500, even though he claimed his monthly income at the time was $22,913 and “not sufficient to justify a support award” to respondent of $9,500 per month.
Because, as discussed below, the trial court found no material change in circumstances, the trial court had no obligation to engage in the weighing process called for under section 4320.
2. No Material Change of Circumstances Regarding Income
Circumstances that are “accounted for” in a prior spousal support order cannot constitute a change of circumstances. (In re Marriage of Kacik (2009) 179 Cal.App.4th 410, 418, 426 (Kacik).) The loss of appellant’s clients already had been “accounted for” in the reduction of respondent’s monthly spousal support from $13,400 to $9,500. Appellant knowingly agreed to pay spousal support of $9,500 as part of the settlement. He claimed he did so under the unilateral assumption that he could modify spousal support if his income did not increase.
But, the trial court was not compelled to modify spousal support merely based on appellant’s unrealized (and mistaken) assumption. With an exception not relevant here, a court “cannot find a change in circumstances in the reevaluation of circumstances that existed before entry of the previous order; those circumstances are presumed to have been accounted for in the order now sought to be modified.” (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶¶ 17:147, p. 17-36.3 (rev. #1 2010); see also Kacik, supra, 179 Cal.App.4th at p. 426 [step down of support to zero with attendant loss of income was circumstance “accounted for” in prior judgment and not a material change]; In re Marriage of Olson (1993) 14 Cal.App.4th 1, 8 [supported former spouse’s future medical needs and health conditions were known and considered at time of original support order and provided for by stipulated judgment]; Biderman, supra, 5 Cal.App.4th at p. 414 [trial court abused its discretion in finding material change in circumstances based on failed expectation or failed assumption concerning supported spouse’s ability to work].) Indeed, as appellant admits, in entering the stipulated judgment, he “agreed to pay a higher sum in order to settle....” Respondent in turn had agreed to forego $3,900 per month in support based on appellant’s loss income due to the loss of his two most valuable clients.
It is clear the trial court also viewed appellant’s claims of straitened circumstances with a jaundiced eye. Appellant and his expert gave varying accounts of appellant’s current monthly income. As our recitation of facts reflects, appellant’s own description of his income shifted over time. Appellant owned his own company, and he controlled the draw he took from it. His personal expenses were paid for by the business. Respondent’s accountant could not substantiate appellant’s claimed financial condition because he claimed the information was “confidential.” In his initial declaration submitted to the court in April 2008, appellant failed to disclose the possibility of his receipt of substantial potential income from one of his former clients. This information was not forthcoming when appellant entered into the June 2008 deal memorandum that reduced respondent’s monthly support. After appellant actually received the sum of $170,000 in July 2008 and prior to the signing of the judgment on reserved issues in February and March 2009, appellant made no disclosure to respondent or the court. This receipt of $170,000 was not disclosed until appellant sought a further modification of support in April 2009. Even then, appellant’s expert excluded this sum in calculating his past income. All of these events provided substantial evidence for the court to conclude appellant failed to meet his burden of demonstrating a material change of circumstance.
Appellant’s failure to make full disclosure appears endemic. For example, the declaration of respondent’s accountant in April 2008 notes that she sought to verify appellant’s claim that appellant’s income “would possibly, at some unspecified date and in some unspecified amount, be negatively impacted by the loss of one ‘temporary’ client.” As a consequence, he states he requested information that “would shed light on the nature, extent and history of [appellant’s] clients.” She notes that “EVERY” such request was met with the claim that the information was confidential, “[t]hus we have never been provided with the essential documents and information that would have, then or now, enabled us to verify any of [appellant’s] representations concerning his business.” Respondent’s accountant observed that the declaration of appellant’s accountant, who handled his business matters, provided no evidence or “verifiable information” on the subject and that the accountant had confirmed she “ha[d] no direct, first-hand knowledge of the nature and extent of the billings by [appellant] to [his] clients. Rather, we have been repeatedly informed that the only information provided to [appellant’s accountant] concerning revenues of the business is limited to the gross amounts of client payments deposited by [appellant] in the bank.”
3. No Demonstrated Material Change of Respondent’s Circumstances
Appellant complains that the trial court failed to address his claim that respondent’s failure to make good faith efforts to become self-sufficient constituted a change in circumstances warranting modification of spousal support, as there was reasonable advance warning of her obligation to do so. (Gavron, supra, 203 Cal.App.3d at p. 712.) We disagree.
Pursuant to established appellate norms, we presume the trial court considered and rejected appellant’s claim that respondent’s failure to obtain employment justified a reduction in spousal support. We find sufficient evidence in the record to support the trial court’s implied finding.
Respondent is over 55 years of age. She and appellant were married for 31 years before their separation. Respondent was last employed outside the home in 1990, over 20 years ago, as a “compensation claims examiner/supervisor.” In the years since, the business world generally, and the office environment in particular, has undergone a cosmic change. There is no showing in the record that respondent is presently equipped, either by education, skill or training, to return to her former employment or any other meaningful employment in the present economic climate. The evidence in the record indicates that, in addition to a lack of reliable transportation, respondent is still undergoing rehabilitation.
Moreover, the record lacks any showing of a change in circumstance with respect to respondent’s ability to obtain employment. Appellant asserted in his first order to show cause for modification of spousal support that “Respondent has made absolutely no effort to contribute to her own support.” He complained in his April 2008 declaration that he attempted to have respondent “vocationally examined” but she missed two scheduled appointments. After the settlement, deal memorandum and judgment on reserved issues, appellant again complained in April 2009 to the court that nothing had changed, and he reminded the court that respondent failed to appear for the same two vocational examination appointments he had complained of in April 2008.
These circumstances do not compel a finding as a matter of law that respondent’s failure to comply with an obligation to make reasonable good faith efforts to become self-supporting justified a modification of spousal support. To the contrary, there was substantial basis on which the trial court could decline to impose “drastic legal and financial consequences” as a result of a failure to satisfy any expectation that she should become self-sufficient. (See Gavron, supra, 203 Cal.App.3d at p. 712.)
DISPOSITION
The order is affirmed. Respondent is to recover costs on appeal.
We concur: BIGELOW, P. J., GRIMES, J.