Opinion
A098578.
7-30-2003
DOLORES A. MARTIN, Plaintiff and Appellant, v. CITY OF ANTIOCH, et al., Defendants and Respondents.
This appeal arises from the shooting death of appellants son, Joseph Ross III (Ross), during a confrontation between Ross and Antioch police officers who were attempting to serve him with an arrest warrant. Appellant Dolores A. Martin purports to appeal from "part" of a trial court decision on a motion for summary judgment in favor of respondents and defendants Antioch Police Officers Guy Worth, Preston Garcia, and Antioch Police Chief Mark A. Moczulski. Appellant argues that the trial court erred in granting summary judgment because there were disputed issues of material fact regarding the objective reasonableness of the police officers use of deadly force to effect Rosss arrest; and that the trial court erred in sustaining respondents objections to the admission by appellant of certain evidence. There is no merit to appellants contentions, and the summary judgment is therefore affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On this appeal from a grant of summary judgment, we may consider only those facts which were before the trial court at the time it granted the motion. Unless they were fully presented, developed and argued to the trial court, potential theories that could theoretically have created triable issues of material fact may not be raised or considered on appeal. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Thus, we confine ourselves to the facts developed and presented in the record before the trial court at the time it considered and granted respondents motion for summary judgment.
On October 27, 1999, Antioch Police Officer Richard Smith learned from San Pablo Police Department Detective Mike von Millanich that Ross was wanted on a probable cause arrest warrant in connection with an incident in which he allegedly shot someone in the back. Detective von Millanich told Officer Smith that Ross was staying in Antioch in an apartment with Rosss sister; and that according to an unidentified informant, Ross was known to carry the same gun involved in the shooting incident on his person at all times.
Officer Smith gave the information he had received from the San Pablo Police Department to respondent Antioch Police Officer Guy Worth, who at that time was serving as acting supervisor in charge of the Antioch Community Policing Division. Officer Worth in turn gave Officer Smith permission to obtain a recent photograph of Ross. After Officer Smith had obtained the photograph, confirmed the warrant, and verified with the manager of the apartment where Ross was reportedly staying that Ross had in fact been on the premises, Officer Worth gave Officer Smith permission to serve the arrest warrant.
Believing on the basis of the information he had received from San Pablo police that Ross was armed and dangerous, Officer Smith assembled a team of six officers to assist in serving the arrest warrant. In addition to himself and respondent Officer Worth, the other four officers were Officer McBroom, Officer Brooks, Corporal Delevan, and respondent Officer Preston Garcia. All the police officers were dressed in full uniform. Later the same day, the team assembled at the Antioch High School parking lot. At the other officers request, Corporal Delevan brought a ballistic shield that was designed to deflect bullets if fired upon. The six officers then drove to the apartment complex.
Corporal Delevans name is spelled differently at different points of the record. For the sake of convenience, we will use the spelling as it appears in the declarations of Officer Smith and Officer Worth.
Officers Smith, Garcia and Worth approached the front door of the apartment at which Ross was reportedly staying, followed by Corporal Delevan with a bean bag shotgun. The other two officers maintained positions at the other side of the apartment complex to prevent the suspects possible escape from the rear of the apartment. As they approached the front door, Officer Smith could hear a TV or radio playing in the apartment, and Officer Worth observed a light on inside. When he knocked, Officer Smith heard footsteps and something brush against the other side of the door, and he observed fluctuations in the light from the peep hole suggesting that someone was looking through it at him.
After knocking again and receiving no response, Officer Smith touched or nudged the front door, and it swung open easily. Ross was standing in the living room against the wall approximately 10 to 12 feet away, facing the front door and holding a small child approximately one or two years of age against his chest. After identifying themselves to Ross as police officers, Officer Smith told Ross to put down the child. Ross did so, and then started backing away with his left shoulder forward, and his right hand reaching into his right back pocket. The three officers told Ross he was under arrest, and ordered him to remove his hand from his pocket and to get down on the floor. Ross did not comply. As Ross continued to back further and further down into the apartment hallway, Officer Worth warned the other officers to watch Rosss right hand.
Still "blading" his body at an angle with his left shoulder toward the police, Ross continued backing up until he reached and entered a side bedroom. At that point, he was no longer in view of the police officers. Repeatedly telling Ross he was under arrest and ordering him to the floor, the officers advanced slowly down the narrow, darkened hallway. When the officers reached the bedroom door, Officer Worth produced a flashlight and shined it at Ross. The officers could see Ross inside the bedroom, still in a "bladed" stance but with his right hand now in his right front pocket, saying "what." Officer Worth granted Officer Garcias request for permission to use pepper spray on Ross. Officer Garcia shot some pepper spray at Ross, but it appeared to have no effect on him.
Seeing the pepper spray had no effect, Officers Worth and Garcia started to back away. Ross took his right hand out of his pants pocket, and Officer Smith saw him holding a "shiny object." After moving along a wall with his right hand behind his hip, Ross let out "a deafening groan," leaned over, extended his left hand, and advanced on Officer Smith with his right hand held above his shoulders. Thinking the object was a gun, Officer Smith yelled at Ross to "drop the gun," or words to that effect. Instead, Ross ran at Officer Smith with a 5 to 6 inch knife in his right hand. Officer Smith again yelled at Ross to stop, but he did not. Believing his own life was in imminent danger, Officer Smith fired two rounds from his handgun at Ross when he was approximately 10 to 12 feet away. When his first shots had no apparent effect, Officer Smith continued to fire a total of 16 shots as Ross came closer.
Officers Worth and Garcia heard Ross "screaming," and heard Officer Smith yell something like "hes got a gun." Officer Worth heard two shots. Unable to ascertain who had fired the shots, and under the belief Ross was shooting at them, Officer Worth fired two shots from his weapon in Rosss direction. As Ross emerged from the bedroom, Officer Worth saw he was holding "an object." Believing his life was in danger, and "extremely scared that [he] was going to die," Officer Worth shot at Ross up to 10 times in a "continuous burst" of gun fire. Officer Garcia heard shots, and also saw Ross carrying a "shiny metal object in his right hand" which he "assumed" was a gun. He saw Ross running toward Officer Smith in what appeared to be an "aggressive," crouching posture. Considering Ross a threat to the other officers and to himself, Officer Garcia fired at Ross "in a continuous volley of eight shots."
As Ross entered the hallway and Officer Smith backed up into the bathroom, Ross dropped to the ground and rolled over. The officers called for an ambulance. The fire department arrived and administered cardiopulmonary resuscitation (CPR) until the ambulance arrived. There were 26 bullet wounds in Rosss body.
Appellant, Rosss mother, filed the action below for wrongful death, violation of state and federal civil rights, and negligent and intentional infliction of emotional distress. Appellants first amended complaint, filed on January 26, 2001, named as defendants the City of Antioch, the Antioch Police Department, Chief of Police Moczulski, and Officers Worth, Smith and Garcia; and sought compensatory damages in the amount of $ 5 million and punitive damages in the sum of $ 102.5 million. On January 9, 2002, the defendants filed a motion for summary judgment, arguing that the police officers actions were objectively reasonable under the factual circumstances, which presented a real threat of death or serious bodily harm to them.
Following briefing and submission of evidence, the trial court heard argument and took the matter under submission. On March 8, 2002, the trial court issued notice of decision on the motion for summary judgment, granting the motion as to Police Chief Moczulski and Officers Worth and Garcia, but denying it as to Officer Smith and the City of Antioch. On March 13, 2002, the trial court issued a statement of decision finding that there were triable issues of material fact as to whether it was reasonable for Officer Smith to fire at Ross, and the motion for summary judgment was therefore denied as to him and the City of Antioch. However, as to Officers Worth and Garcia, the trial court concluded the undisputed evidence established that each had fired at Ross "under the reasonable belief that the decedent had either fired a weapon at officer Smith or pulled out a handgun and attempted to do so," and "that each had just cause to fire at [Ross] under the circumstances that prevailed as to each"; and therefore appellant had been unable to establish a triable issue of material fact regarding the reasonableness of the use of force by those two defendants. In addition, the trial court ruled on certain evidence proffered by appellant. This appeal followed, purportedly from the trial courts decision granting summary judgment as to Officers Worth and Garcia.
JURISDICTION
In California, the right to appeal in a civil action is wholly statutory. In order to exercise that right, an appeal must be taken from a judgment or order specifically declared appealable by statute. (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21-23.) An order granting a motion for summary judgment is not among the types of orders specified as appealable by the pertinent statutes and rules. Consequently, such an order is a nonappealable preliminary order. (Avila v. Standard Oil Co. (1985) 167 Cal. App. 3d 441, 445, 213 Cal. Rptr. 314.) Instead, a notice of appeal must be filed from the final judgment actually terminating the action, and not from the order granting a motion for summary judgment. (Code Civ. Proc., §§ 437c, subds. (k), (m), 904.1, subd. (a); California Rules of Court, rules 1(a), 2, 3; Modica v. Merin (1991) 234 Cal. App. 3d 1072, 1073-1075, 285 Cal. Rptr. 673; Integral Land Corp. v. Anderson (1944) 62 Cal. App. 2d 770, 771-772, 145 P.2d 364; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 103, 119, pp. 166-167, 183; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) P 2:21.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
The record in this particular appeal contains no such final judgment. The only pertinent document in the record is the trial courts "notice of decision upon motion for summary judgment," which simply notifies the parties that "the motion for summary judgment as to defendants [Worth, Garcia and Moczulski] is granted." Thus, the record contains only a nonappealable order and not an actual final judgment with respect to respondents Worth, Garcia and Moczulski.
Nevertheless, the fact an appeal is from a nonappealable order may not necessarily be fatal. Such an appeal may be "saved" where the defect in the appeal is one of formality only, as where an appealable judgment does actually exist and appellants error was merely in specifying the wrong document. Although this power to "save" an appeal is normally invoked where there is an existing appealable judgment at the time the appeal was mistakenly taken from a preliminary order rather than from the final judgment itself, a reviewing court also has broad discretion to deem a notice of appeal as referring to a subsequently entered appealable final judgment that was not actually in existence at the time the notice of appeal was filed. In such circumstances, the fact the notice of appeal preceded the actual entry of final judgment merely renders the appeal excusably premature. (Cal. Rules of Court, rule 2(d); Vibert v. Berger (1966) 64 Cal.2d 65, 67-68, 48 Cal. Rptr. 886, 410 P.2d 390; Mason v. Mercury Cas. Co. (1976) 64 Cal. App. 3d 471, 473, fn. 2, 134 Cal. Rptr. 545; Fazzino v. Insurance Co. of North Amer. (1957) 152 Cal. App. 2d 304, 305, 313 P.2d 178; 9 Witkin, supra, Appeal, §§ 112, 512, pp. 177-178, 558; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, PP 2:67, 2:262 to 2:264.) This "saving" power is entirely discretionary with the appellate court, and is done only in the interests of justice, to preserve judicial economy, and to prevent further delay. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 154-155, 133 Cal. Rptr. 10, 554 P.2d 330; Basinger v. Rogers & Wells (1990) 220 Cal. App. 3d 16, 20-21, 269 Cal. Rptr. 332; Avila v. Standard Oil Co., supra, 167 Cal. App. 3d at p. 445; Munoz v. Davis (1983) 141 Cal. App. 3d 420, 431, 190 Cal. Rptr. 400; 9 Witkin, supra, Appeal, §§ 83, 112, pp. 140-142, 178; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, PP 2:67, 2:263, 2:265 to 2:266.)
Rule 2(d) provides: "(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment.
"(2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment."
In this instance, an appealable final judgment has in fact been entered in this case since appellants purported appeal from the trial courts order granting summary judgment as to respondents Worth, Garcia, and Moczulski. That judgment was entered on September 4, 2002, following jury trial of the defendants and issues remaining in the case after the earlier grant of summary judgment filed on March 8, 2002. In the interests of justice and judicial economy, this court exercises its discretion to deem the purported appeal from the earlier order granting summary judgment as to respondents Worth, Garcia and Moczulski as prematurely taken from the final judgment in the underlying litigation entered six months thereafter.
SUMMARY JUDGMENT WAS PROPERLY GRANTED
Any defendant may move for summary judgment in any action or proceeding by contending that the action has no merit. (§ 437c, subd. (a).) Section 437c, subdivision (c), requires a trial court to grant summary judgment if all the papers and affidavits submitted, together with "all inferences reasonably deducible from the evidence" and uncontradicted by other inferences or evidence, show that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c); Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505, 1511-1512, 285 Cal. Rptr. 385; 6 Witkin, supra, Proceedings Without Trial, § 217, p. 629.)
"On appeal, we review the trial courts decision to grant or deny the summary judgment motion de novo, on the basis of an examination of the evidence before the trial court and our independent determination of its effect as a matter of law. [Citations.] We are not bound by the trial courts stated reasons or rationale. Instead, we review the summary judgment without deference to the trial courts determination of questions of law. [Citations.] We may consider only those facts which were before the trial court, and disregard any new factual allegations made for the first time on appeal. Thus, unless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create `triable issues of material fact may not be raised or considered on appeal. [Citations.]" (Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163; 6 Witkin, supra, Proceedings Without Trial, § 235, pp. 646-647.) Like the trial court, we must consider all the evidence properly identified in the papers submitted, except that as to which objections have been made and sustained by the court. (§ 437c, subd. (c); Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 561, fn. 2.) Where a party fails to timely object in the trial court to the admissibility of evidence, the objection is waived. (§ 437c, subd. (d); Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 174-175.) In these circumstances, the appellate court may properly "consider as the trial court presumably did, all of the evidence set forth in the papers." (Barber v. Marina Sailing, Inc., supra, 36 Cal.App.4th at p. 561, fn. 2.)
All of the causes of action of appellants suit against respondents were based on the allegation that the police officers used excessive force in attempting to arrest Ross, as a result of which Ross was shot and killed. Claims of excessive force are analyzed under the Fourth Amendment and its standard of "reasonableness." As applied to the circumstances of this case, the proper inquiry necessarily focuses upon whether the respondent police officers acted reasonably in shooting Ross at the time they attempted to effect his arrest. (Graham v. Connor (1989) 490 U.S. 386, 394-397, 104 L. Ed. 2d 443, 109 S. Ct. 1865; In re Joseph F. (2000) 85 Cal.App.4th 975, 989; Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 343 (Martinez).) "The `reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. [Citation.] . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation. [P] . . . The `reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers actions are `objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. [Citations.]" (Graham v. Connor, supra, 490 U.S. at pp. 396-397.)
The evidence presented by respondent Officers Worth and Garcia is that from the outset, they had information from the San Pablo Police Department that Ross was accused of shooting someone in the back, there was an outstanding warrant for his arrest on those charges, and he was known to be armed with a handgun and dangerous. The evidence further shows that when the respondent officers attempted to serve Ross with the arrest warrant, he initially appeared to use a small child as a shield; resisted arrest; disregarded numerous repeated commands to remove his hands from his pockets; and attempted to attack Officer Smith with an upraised knife at close range, in a highly confined space, placing Officer Smith in reasonably apparent danger of death or grave bodily harm. Finally, respondents evidence shows that Officers Worth and Garcia fired their weapons at Ross only after they heard Officer Smith shout "hes got a gun," or words to that effect, and heard at least two gun shots fired. Officers Worth and Garcia both also saw Ross running toward Officer Smith in an aggressive manner, with a shiny object in his hand.
This evidence easily supports an objective conclusion that under the exigent circumstances in which they were placed, the respondent police officers did not act unreasonably in firing their weapons at Ross. The courts have routinely characterized as reasonable police shootings occurring in circumstances similar to these. Thus, in Martinez, supra, 47 Cal.App.4th 334, the police had prior information the suspect was brandishing a knife in public. When confronted, he advanced on the officers with a knife and ignored their admonitions to drop the knife and stop. When the suspect had closed to within 10 to 15 feet, the police shot him. Although the suspect flinched, he failed to fall down and instead appeared to continue his advance. The officers shot at least two more bursts of gunfire at the suspect, and continued to shoot even after he fell to the ground. In an action brought by the deceased suspects mother and daughter claiming wrongful death and violations of federal civil rights, the trial court granted summary judgment for the defendants after finding that the shooting was reasonable and justified. The court of appeal affirmed the judgment, ruling that the repeated shootings were not unreasonable since they were all part of the officers initial reaction to the suspects apparently continuing advance. (Martinez, supra, 47 Cal.App.4th at pp. 339-341, 344-349; see also federal cases cited therein.)
As in Martinez and the numerous cases upon which it relies, the evidence shows the police officers justifiably and reasonably shot Ross after he advanced to within a few feet of them with a knife, ignoring repeated warnings that he stop and manifesting an evident intent to attack. Under well-established case law, this evidence clearly supports the grant of summary judgment for respondent Officers Worth and Garcia, on the basis of the trial courts conclusion that the amount of force they used against Ross was not "excessive" as a matter of law. (Martinez, supra, 47 Cal.App.4th at pp. 339-341, 344-349; see also Wilson v. Meeks (10th Cir. 1995) 52 F.3d 1547, 1553 [even if decedent was holding gun in a "surrender" position, "it is hard to imagine that pointing a .357 magnum in any direction would not cause a reasonable police officer to fear for someones life-if not his own, then the life of a bystander or the gunman himself"]; Roy v. Inhabitants of City of Lewiston (1st Cir. 1994) 42 F.3d 691, 693, 695-696 [police officers shot suspect who advanced on them carrying steak knives in both hands, refused repeated instructions to put down knives and made threatening gestures; summary judgment for officers affirmed]; Rhodes v. McDannel (6th Cir. 1991) 945 F.2d 117, 118-120 [objectively reasonable for police officers to shoot and kill machete-wielding suspect advancing toward them and civilian despite repeated orders to stop and drop weapon; summary judgment for officers affirmed]; ONeal v. DeKalb County, GA. (11th Cir. 1988) 850 F.2d 653, 654, 656-658 [objectively reasonable and justified for police officers to fire repeated volleys at knife-wielding suspect after first shots failed to stop his threatening advance].)
"The test of reasonableness in this context is an objective one, viewed from the vantage of a reasonable officer on the scene. It is also highly deferential to the police officers need to protect himself and others . . . . [P] . . . [P]
"The Supreme Courts definition of reasonableness is therefore comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. [Citation.] In effect, `the Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases. . . . [Citation.] [P] . . . [P]
"Thus, `an officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate an intent to attack. In these circumstances, the Courts cannot ask an officer to hold fire in order to ascertain whether the suspect will, in fact, injure or murder the officer. The high numbers of officer mortalities in recent years illustrate the unreasonableness of such a notion. [Citation.]" (Martinez, supra, 47 Cal.App.4th at pp. 343-345.)
Having presented this evidence, the burden shifted to appellant to demonstrate the existence of a triable issue of material fact with respect to the objective reasonableness of the respondent officers actions. (§ 437c, subd. (o)(2); Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1142; PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590, disapproved on other grounds, Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11; Sangster v. Paetkau, supra, 68 Cal.App.4th at pp. 161-162; Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-746; 6 Witkin, supra, Proceedings Without Trial, § 201, pp. 613-614.) "For this purpose, responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact." (Sangster v. Paetkau, supra, 68 Cal.App.4th at pp. 162-163; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Burton v. Security Pacific Nat. Bank (1988) 197 Cal. App. 3d 972, 978, 243 Cal. Rptr. 277.)
As in the trial court below, appellant has failed to point to evidence demonstrating the existence of any triable issues of material fact. To demonstrate a triable issue as to the officers objective reasonableness, appellant was required to present specific evidence that Rosss actions did not place the officers in imminent danger of death or grave bodily harm, and that he therefore did not present an actual, objective threat to them. (Martinez, supra, 47 Cal.App.4th at pp. 344-349.) Both below and before this court, appellant has argued that triable factual issues were raised about the officers versions of the incident by the following: (1) the failure to find pepper spray residue on Rosss body; (2) the fact Ross had a knife in his possession rather than a gun; (3) varying witness descriptions of the statements or vocal sounds made by Ross during the confrontation; and (4) the number and location of bullet wounds on Rosss body.
None of these items raises a material issue of fact with respect to the actions of Officers Worth and Garcia. Even if there is conflicting evidence on the officers use of pepper spray or the nature of Rosss vocalizations, this does not affect the undisputed evidence that Officers Worth and Garcia fired shots at Ross only after they heard Officer Smith shout something about Ross having a gun, and immediately thereafter heard gunshots. Similarly, whether or not Officer Smith reasonably mistook the upraised knife in Rosss hand for a handgun, there is no evidence to contradict the sworn statements of Officers Worth and Garcia that after hearing Officer Smith say "hes got a gun," they witnessed Ross charging Officer Smith with a suspicious object in his hand. Certainly, being charged at close quarters by a suspect brandishing a knife can reasonably be considered life threatening, whether or not the knife has been mistaken for a gun.
Resolution of this appeal turns on the evidence with respect to the actions of Officers Worth and Garcia. Because the trial court denied summary judgment as to Officer Smith and instead let the case against him go to jury trial, the existence of triable issues with respect to his actions is essentially irrelevant here.
Finally, despite appellants claim that the location and angle of bullet wounds on Ross body contradicts the officers version of events, there is no actual evidence to back up these assertions, which were first advanced by appellants attorney in the points and authorities filed in opposition to the motion for summary judgment below. The trial court was entitled to conclude that counsels unsubstantiated assertions are not evidence, and rely instead on the uncontradicted sworn declaration of respondents certified crime scene analyst Alexander Jason, who analyzed Rosss wounds and concluded that "the version of events as described by the officers . . . is consistent with the physical evidence in the case."
We conclude that the uncontradicted evidence shows that Ross was actively resisting or attempting to evade arrest, and that based on his actions Officers Worth and Garcia reasonably perceived an immediate, objective threat to their safety and that of Officer Smith. Summary judgment was properly granted both as to them and as to Police Chief Moczulski.
With respect to Police Chief Moczulski, appellant offers absolutely no evidence to support any triable issue of material fact.
Appellant adds a conclusory argument that the trial courts exclusion of four items of evidence was "unfounded." Appellants bare assertions, which are unsupported by any facts or argument whatsoever, must be rejected as themselves unfounded.
DISPOSITION
The trial courts grant of summary judgment as to respondents Worth, Garcia and Moczulski is affirmed.
We concur: Corrigan, J., Parrilli, J.