Plaintiff Wilhelmina Daniels appeals an order granting a Code of Civil Procedure section 425.16 (anti-SLAPP) motion.
The prior lawsuit was dismissed following the trial court's grant of terminating sanctions against James T. Young, the plaintiff in the prior lawsuit. The law firm Quinlivan Wexler LLP, Attorney Patrick C. Quinlivan, and Attorney Jack H. Robbins (collectively, the Quinlivan Attorneys) represented Young in the underlying action. Young and the Quinlivan Attorneys are defendants in this action. The court granted the Quinlivan Attorneys' anti-SLAPP motion and they are respondents to this appeal; Young is not a party to this appeal.
We affirm the order granting the anti-SLAPP motion because Wilhelmina failed to make the required showing she would probably prevail on her claims. With respect to the malicious prosecution cause of action, we affirm on the ground Wilhelmina failed to make a prima facie case of malice against the Quinlivan Attorneys.
We publish this opinion because of our analysis of (1) the favorable termination prong of an action for malicious prosecution and our discussion of Zeavin v. Lee (1982) 136 Cal.App.3d 766 [186 Cal.Rptr. 545] (Zeavin);
The Underlying Litigation
Young sued Wilhelmina for allegedly committing slander per se, intentional infliction of emotional distress, and intentional interference with an economic relationship by falsely stating to various individuals that (1) Young kidnapped Wilhelmina's son, Karl Daniels; (2) Young forced Karl into a sexual relationship; and (3) Young is a con man. Having filed a lawsuit against Wilhelmina in March 2004, Young proceeded to ignore his obligations to participate in the discovery process. Young refused to appear for his deposition and provided no substantive responses to any of 10 sets of written discovery propounded by Wilhelmina. The court granted Wilhelmina's motions to compel Young's compliance with the Civil Discovery Act (§ 2016.010 et seq.). But Young still refused to serve any written discovery responses or appear for a deposition.
Wilhelmina served a motion for terminating sanctions based on Young's refusal to follow the court's orders and to comply with his discovery obligations. Young's attorneys filed a very brief opposition to this motion, claiming Young had been diagnosed with pneumonia and was limited in his physical activities. Young's attorneys noted Young had finally produced some documents to Wilhelmina in April 2005 and was continuing to work on the written discovery requests. The court granted Wilhelmina's motion for terminating sanctions and dismissed the case.
The Anti-SLAPP Motion
Wilhelmina initiated the instant malicious prosecution case. The Quinlivan Attorneys filed a special motion to strike the complaint pursuant to section 425.16. Included with the motion were declarations by Patrick Quinlivan and Jack Robbins, in which they attested the filing and continued litigation of the prior case "was based upon [the firm's] reasonable tenable belief, based on information at [the firm's] disposal, that the facts supported the allegations in the complaint. At no time did I or anyone at [the] firm have feelings of ill will or malice toward Ms. Daniels. The action was filed and litigated by [the] firm solely to advance Mr. Young's right to petition and seek redress through the court."
Evidence Submitted by Wilhelmina in Opposition to the Anti-SLAPP Motion
Wilhelmina filed an opposition to the anti-SLAPP motion with several declarations in support of her position. Karl's declaration suggested Young
The remainder of Karl's declaration, as well as Wilhelmina's declaration, focused on the alleged impossibility of the factual allegations in Young's complaint. Young's complaint against Wilhelmina alleged, in relevant part: "On or about June 1, 2003, and continuing to the present, Defendant spoke the following words of and concerning the Plaintiff: Plaintiff kidnapped her son; Plaintiff had forced sexual relations with her son; and Plaintiff is a con man. [¶] The words were heard by employees at AFLAC, an insurance company with which Plaintiff does business, and several other persons whose names are not known to Plaintiff." Karl and Wilhelmina both declared, in essence, it would have been impossible for Wilhelmina to have spoken with anyone at Aflac on or about June 1 because Karl did not even move to California until June 10, 2003, and Wilhelmina did not track down his location and employer until October 2003. Wilhelmina denied she made any of the allegedly slanderous statements.
Counsel for Wilhelmina also submitted a declaration. This declaration described, in painstaking detail, the discovery abuses leading to the dismissal of Young's complaint against Wilhelmina. The implication drawn by Wilhelmina is that the lack of evidence produced in discovery shows there was no probable cause to file Young's lawsuit against her and there was no probable cause to continue the lawsuit against her once it became clear there was no evidence for the contentions in the complaint.
Counsel's declaration also raised other alleged instances of misconduct which purportedly implicate the Quinlivan Attorneys along with Young. First, Wilhelmina's counsel described several communications between counsel early in the underlying case. Wilhelmina's counsel sought an extension to answer the complaint against her, and was informed by defendant Robbins "that his client had not authorized him to issue an extension of time to
Second, Wilhelmina and Karl moved to consolidate the three actions filed against them by Young, but the Quinlivan Attorneys successfully opposed this motion through an allegedly false representation to the court. Robbins filed a declaration in the underlying action in which he stated the following, after describing the separate claims against Karl: "On the other hand, the case for defamation against Wilhelmina Daniels will involve taking depositions of at least ten witnesses, many of whom reside out of state and may be difficult to schedule. Also, we are seeking punitive damages against Ms. Daniels, which may require discovery on the financial condition, which will also likely involve delay in conducting discovery." Wilhelmina points out in her opposition to the anti-SLAPP motion that the identities of these 10 witnesses were never provided by Robbins or Young in response to formal and informal discovery requests. Allegations of perjury (by Robbins) appear throughout Wilhelmina's appellate briefs.
Third, Wilhelmina's counsel described the disintegration of the Quinlivan Attorneys' representation of Young. Robbins was no longer employed by the Quinlivan firm by December 2004. The Quinlivan Attorneys initiated settlement talks in early 2005, in which the ultimate offer by Young to settle consisted of a dismissal with prejudice in exchange for a mutual release of all rights (including malicious prosecution claims). There were indications in May 2005 that Robbins might substitute in as counsel for Young but this never occurred. The Quinlivan firm filed a notice of appeal for Young on July 19, 2005, and also filed the same day a motion to be relieved as counsel, citing both the nonpayment of legal fees by Young and "irreconcilable differences between client and attorney regarding strategy that may result in a violation of the rules of professional conduct."
Court's Ruling on Anti-SLAPP Motion
The court granted the anti-SLAPP motion. As to the malicious prosecution cause of action, the court found Wilhelmina failed to meet her burden as to the "favorable termination" element. The court also found Wilhelmina had not attempted to meet her burden to show she would prevail on her other three causes of action, essentially conceding that these causes of action were inappropriate in the context of the facts alleged. The court noted: "[Wilhelmina] concedes that these claims may be barred by the litigation privilege, but nonetheless contends that the Motion should be denied because these claims are basically the same as the First Cause of Action for Malicious Prosecution. Plaintiff cites no authority for this contention."
Wilhelmina asserts the court erred in granting the Quinlivan Attorneys' motion to strike the complaint under section 425.16. Our review of the court's order
Anti-SLAPP Motion Analytical Framework
Probability of Prevailing on Abuse of Process, Negligence, Intentional Infliction Torts
We agree with the trial court that Wilhelmina completely failed to meet her burden of showing a probability of prevailing on three of her causes of action. Wilhelmina stated in her opposition: "Being merely other labels or theories of recovery, arising from the same operative facts and causing the same damages, the [final three causes of action] may fairly be treated as subsumed by the first cause of action [for malicious prosecution]. [O]ne cause of action is, essentially, asserted." Wilhelmina did not set out the elements of these causes of action or attempt to show sufficient evidence had been provided to satisfy these elements.
Probability of Prevailing on Malicious Prosecution Cause of Action
1. Wilhelmina Established a Prima Facie Showing That the Underlying Action Was Terminated in Her Favor
It is clear that, at least in some circumstances, the dismissal of an underlying action as a result of discovery sanctions will satisfy the favorable termination element of a malicious prosecution claim. (Ross, supra, 145 Cal.App.4th at pp. 192, 198-202.) In Ross, the underlying lawsuit was dismissed following the malicious prosecution defendant's (Kish) refusal to appear for a deposition, despite a court order. (Id. at pp. 194-195.) The Ross court, affirming the denial of Kish's anti-SLAPP motion, concluded "Kish's refusal to be deposed reasonably may be construed as a concession his claims . . . lacked merit." (Id. at p. 192.) In coming to its conclusion, the Ross court considered the evidentiary record from the underlying action (which suggested Kish's claims lacked merit), the sophistication of Kish, and Kish's familiarity with the key factual issues in the underlying case. (Id. at pp. 198-200.)
The approach utilized in Ross is not unique; other states' highest courts have concluded that the circumstances surrounding the dismissal of an underlying case for discovery abuse may justify a conclusion that a favorable termination on the merits occurred. (See Chervin v. The Travelers Ins. Co. (2006) 448 Mass. 95 [858 N.E.2d 746] [reversing summary judgment, Mass. Supreme Court held dismissal of underlying action based on failure to respond to interrogatories can be favorable termination for malicious prosecution plaintiff]; Paul v. Sherburne (2006) 153 N.H. 747 [903 A.2d 1011] [reversing grant of motion to dismiss, N.H. Supreme Court held dismissal of underlying petition based on petitioner's failure to appear at final hearing can be favorable termination]; Nagy v. McBurney (1978) 120 R.I. 925 [392 A.2d 365, 368] [reversing directed verdict, R.I. Supreme Court explained dismissals of underlying collection actions based on party's "failure to file further
Similar types of dismissals are also favorable terminations in appropriate circumstances. For example, "[a] voluntary dismissal is presumed to be a favorable termination on the merits, unless otherwise proved to a jury." (Sycamore Ridge, supra, 157 Cal.App.4th at pp. 1400-1401 [sufficient anti-SLAPP prima facie showing of favorable termination made in voluntary dismissal case]; compare with Contemporary Services Corp. v. Staff Pro. Inc. (2007) 152 Cal.App.4th 1043, 1056-1058 [61 Cal.Rptr.3d 434] [malicious prosecution plaintiffs failed to meet anti-SLAPP burden to show voluntary dismissal in underlying case reflected on the merits].) Likewise, a dismissal of an action for failure to prosecute raises a factual issue of favorable termination in an ensuing malicious prosecution action, based on "the natural assumption that one does not simply abandon a meritorious action once instituted." (Minasian v. Sapse (1978) 80 Cal.App.3d 823, 827-828 [145 Cal.Rptr. 829].) Furthermore, a final judgment after trial is a favorable termination even if the plaintiff is precluded by evidentiary sanctions from presenting evidence at the trial. (Lumpkin v. Friedman (1982) 131 Cal.App.3d 450, 452-456 [182 Cal.Rptr. 378].)
Returning to the case before us, the court in the underlying action explained its rationale for granting terminating sanctions. After hearing from the attorneys, the court indicated it could (1) deny the motion and let the matter proceed to trial; (2) grant evidentiary sanctions and proceed to trial, i.e., "nothing except what has been disclosed in discovery will be admitted at trial"; or (3) find there is "no basis for trial [as] there is no way [Young] can prove his claims." The court indicated it did not wish to dismiss the case solely because the discovery was not served in a timely fashion. The court then took a recess and reviewed documents (bank statements) produced by Young shortly before the terminating sanctions hearing. The court returned and ruled: "Now, normally discovery sanctions must be narrowly tailored to provide a remedy . . . . But as of the time this motion was filed until last Friday, no information had been provided except for some bank statements [and] the initial responses [had] objections only. [¶] I think it is unfair for the defense to go to trial with that information." "Based upon the discovery I've seen, if I were to exclude any evidence not presented during discovery, Mr. Young would not be able to meet his burden . . . ."
We conclude Wilhelmina met her burden under section 425.16, subdivision (b), by submitting evidence that the judgment in the underlying action reflected on the merits of the case against her. Young did not provide any
The Quinlivan Attorneys argue that a line of cases precludes this result in malicious prosecution cases filed against attorneys rather than the plaintiff from the underlying action. (See Pattiz v. Minye (1998) 61 Cal.App.4th 822, 826-829 [71 Cal.Rptr.2d 802] (Pattiz) [case against client and attorneys]; De La Pena v. Wolfe (1986) 177 Cal.App.3d 481, 484-486 [223 Cal.Rptr.325] (De La Pena) [case against attorneys]; Zeavin, supra, 136 Cal.App.3d at pp. 770-773 [case against attorneys].) We disagree.
In Pattiz, the court affirmed summary judgment in favor of three malicious prosecution defendants—Minye and her two attorneys from the underlying action. (Pattiz, supra, 61 Cal.App.4th at p. 824.) The underlying action was dismissed as a sanction for discovery abuses, namely Minye's incomplete and disorderly production of documents and the failure of Minye's daughter to appear for a deposition; Minye herself appeared for her deposition and participated in the document production, however deficient. (Id. at p. 825.) The Pattiz court held that the undisputed facts did not support an inference that the dismissal of the underlying case reflected on the merits because "Minye did not abandon the action or refuse to cooperate in discovery. Moreover, it would be unfair to ascribe a lack of cooperation by Minye to her daughter's act of refusing further deposition due to illness." (Id. at pp. 827-828.) The Pattiz court continued: "We disagree that the municipal court expressly found or reasonably inferred that Minye destroyed documents to prevent Pattiz's defense to the cross-complaint. The discovery ruling stated only that Minye misused the discovery process and `egregious[ly]' failed to comply with court-ordered discovery. The ruling made no express findings concerning the merits of the cross-complaint." (Id. at p. 828.) Pattiz correctly found, as a matter of law, that the malicious prosecution plaintiff had failed to prove a favorable termination on the merits based on the record before it.
In Zeavin, two doctors filed a malicious prosecution action against an attorney and his client Chung, the plaintiff in an underlying medical malpractice action. (Zeavin, supra, 136 Cal.App.3d at p. 768.) The complaint alleged the underlying lawsuit was dismissed with prejudice because Chung refused to cooperate with her attorneys, failed to answer written interrogatories, and refused to appear for a deposition. (Ibid.) The malicious prosecution complaint alleged the underlying complaint was filed without probable cause because the surgery performed on Chung was necessary to save her life and was within the community's standard of care. (Id. at p. 769.) The trial court sustained the attorney's demurrer to the complaint "for the reason that the termination of the prior action was not a `favorable termination'" (ibid.), and the appellate court affirmed (id. at p. 773). The Zeavin court found the complaint, which alleged Chung refused to cooperate with her attorney or comply with discovery obligations, was insufficient to constitute an allegation that the underlying action was terminated on the merits in favor of the doctors. (Id. at p. 771.) Zeavin does not hold that an underlying action terminated by way of discovery sanctions can never constitute a favorable termination.
Zeavin suggests that a favorable termination can never occur vis-à-vis an attorney defendant in a malicious prosecution action when the underlying case was dismissed for discovery sanctions, at least where the attorney is not implicated in any misconduct. (Zeavin, supra, 136 Cal.App.3d at p. 773 ["While it may sometimes be proper to hold that a prior action was unfavorably terminated against a party solely because of her conduct in refusing to cooperate or make discovery or by reason of her unilateral abandonment of that action, the attorney is not the insurer of his client's
Zeavin was correct in protecting attorneys from malicious prosecution actions that ensued after their client's recalcitrance in discovery lead to the dismissal of an underlying action. Zeavin, however, conflated the elements of malicious prosecution and appended the correct analysis to the wrong element—element one (favorable termination), instead of element three (malice). Zeavin could have reached the same result by concluding that the plaintiff did not sufficiently plead facts showing malice on the part of the attorney defendant merely by alleging the client failed to cooperate with discovery obligations. Courts should not impute malice to attorneys based on clients' misconduct. (See Estate of Tucker ex rel. Tucker v. Interscope (9th Cir. 2008) 515 F.3d 1019, 1036 [relying on Zeavin as authority for this proposition in its analysis of attorney's alleged malice].)
Zeavin contemplated that the favorable termination element could be adjudicated differently depending on the identity of the defendant in the malicious prosecution action and the responsibility of that particular defendant for the conduct leading to the dismissal of the underlying action. The question presented by the favorable termination element of malicious prosecution, however, is whether the termination reflects the innocence of the malicious prosecution plaintiff or the lack of merit of the underlying action, not whether the termination reflects on the good faith of the particular malicious prosecution defendant.
Zeavin, addressing only the favorable termination element of malicious prosecution, found it inconceivable that an attorney could be held liable for a client's intransigence in discovery: "It would be beyond law or reason to conclude that an attorney who in good faith files and diligently prosecutes an action could later be held liable for malicious prosecution solely because that
2. Wilhelmina Established a Prima Facie Showing That the Underlying Action Was Brought Without Probable Cause
Wilhelmina has sufficiently raised a factual dispute as to whether the Quinlivan Attorneys objectively had probable cause to institute and continue to prosecute (for more than one year) the underlying litigation against Wilhelmina. (See Zamos, supra, 32 Cal.4th at p. 970 [continued prosecution of claim by attorney after discovering lack of probable cause may support malicious prosecution action].) Wilhelmina establishes in the record the complaint was bare bones and does not indicate whether Young himself heard the alleged statements by Wilhelmina; Young and the Quinlivan Attorneys did not disclose any information, documents, or other detail supporting his claims in the underlying litigation; and no individuals who heard the alleged slanderous remarks by Wilhelmina were ever disclosed.
It seems clear Young told the Quinlivan Attorneys something about the alleged statements made by Wilhelmina. Did Young claim to be a witness to those events or did he relate purported secondhand statements to his attorneys? If Young was unable to testify from his personal knowledge that Wilhelmina actually made the alleged slanderous statements, his testimony that others told him Wilhelmina made the statements would be inadmissible. If the only information available to the Quinlivan Attorneys would be inadmissible at trial, did the Quinlivan Attorneys have any evidentiary basis for the complaint? To be slanderous or to have affected Young's business relations, Wilhelmina's alleged statements must have been made in the
Under the circumstances presented, the probable cause inquiry requires a predicate factual determination. The Quinlivan Attorneys were entitled to believe Young's evidentiary statements (if there were any) in the first instance. Moreover, even if Young himself did not purport to possess admissible evidence, if Young's statements afforded a reasonable inference that such evidence could be obtained during discovery, the Quinlivan Attorneys could rely on such statements in filing the complaint. Wilhelmina did not provide any verifiable facts at the outset of the case that would disprove Young's key allegations.
3. Wilhelmina Failed to Establish a Prima Facie Showing That the Quinlivan Defendants Acted with Malice
"Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence." (HMS Capital, Inc., supra, 118 Cal.App.4th at p. 218.) The record clearly supports an inference that Young brought the underlying case with malice; his personal relationship with and alleged threats to Karl suggest his subjective intent in pursuing the baseless underlying suit may have been to exact revenge on Wilhelmina and Karl. The question presented, though, is whether the quantum of evidence is sufficient to establish a prima facie case against the Quinlivan Attorneys. The Quinlivan Attorneys denied in their declarations that they brought and pursued the underlying action with an improper motive. Instead, they claim they merely sought to vindicate their client's legal rights, presumably in exchange for fees. It would be improper to impute Young's malice to the Quinlivan Attorneys. (See Zeavin, supra, 136 Cal.App.3d at p. 773 ["the attorney is not the insurer of his client's conduct, and the law wisely places no such burden on that party's attorney solely by reason of his client's conduct . . ."].)
As noted above, a fair inference from the record is that the Quinlivan Attorneys failed to adequately investigate the factual assertions made by Young before suing Wilhelmina. But evidence of the Quinlivan Attorneys' possible negligence in conducting factual research is also not enough on its own to show malice. (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1467-1468 [242 Cal.Rptr. 562] [affirming summary judgment because careless prefiling factual research did not constitute actual malice on the part of attorneys].)
This corollary follows from Zamos, supra, 32 Cal.4th 958. In Zamos, the attorney defendants to a malicious prosecution action had previously brought a fraud claim based on the representations of their client, but were soon thereafter provided by their opponents with sworn deposition testimony of their client contradicting the fraud allegations. (Id. at pp. 961-962.) The Zamos attorney defendants continued with the fraud case through trial, where the court granted a nonsuit motion. (Id. at p. 963.) The trial court in the malicious prosecution case granted an anti-SLAPP motion in favor of the attorney defendants. (Id. at p. 964.) The Court of Appeal reversed (as to the attorney defendants), and our Supreme Court affirmed the reversal. (Ibid.)
The Zamos court observed that it had previously characterized one element of malicious prosecution "as commencing, bringing, or initiating an action without probable cause." (Zamos, supra, 32 Cal.4th at p. 965.) But it could find no authority or principled reason for distinguishing between an attorney's lack of probable cause for bringing an action and lack of probable cause for continuing to prosecute an action. (Id. at p. 969.) Thus, the Supreme Court held: "an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause." (Id. at p. 960.) The Zamos court rejected an argument that its "holding would be unworkable because it would divert an attorney's attention away from the zealous representation of his or her client . . . ." (Id. at p. 970.) "Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit." (Ibid.)
Wilhelmina also points to the settlement discussions between the parties, in which Young's offer to dismiss the complaint with prejudice was conditioned on a waiver of all malicious prosecution claims. In HMS Capital, supra, 118 Cal.App.4th at pages 218-219, the court found the combination of a frivolous claim, a failure to pursue meaningful discovery by the plaintiff, and an attempt to "squeeze a settlement . . . on a baseless case" (id. at p. 218), was enough evidence of malice to defeat an anti-SLAPP motion. The plaintiff in the underlying action in HMS Capital refused to dismiss a frivolous case unless the defendant paid $25,000. (Id. at pp. 218-219.) As noted above, Young's conduct (including this settlement position) cannot be imputed to the Quinlivan Attorneys. Further, Young's offer to dismiss the action in exchange for a release of all claims is not equivalent to the bad faith exhibited in HMS Capital.
Motion to Submit Additional Evidence or for Writ of Error Coram Vobis
Through a motion, Wilhelmina asks this court to consider voluminous evidence she has uncovered in discovery from Young after the court granted
It would not be appropriate for this court to hold a de novo anti-SLAPP motion hearing based on evidence not presented to the trial court. Nor do we think directing the trial court to rehear the motion by issuing a writ of error coram vobis is appropriate. Wilhelmina could have moved the trial court for an order under section 425.16, subdivision (g), to obtain necessary discovery despite the anti-SLAPP discovery stay. She did not utilize this procedure.
Indeed, the new Young declaration weighs in favor of a finding that the Quinlivan Attorneys had probable cause to file the underlying action because it suggests that Young did provide multiple names of alleged witnesses prior to the commencement of the action. The Quinlivan Attorneys were previously precluded from submitting evidence of communications with Young by their duty to uphold the attorney-client privilege.
As to the malice element, the new evidence shows that the Quinlivan Attorneys established a written record suggesting Young refused to cooperate with them in preparing the case and refused to pay his legal bills. The Quinlivan Attorneys were stuck in the unenviable position of representing an uncooperative client without possessing any evidentiary support for the complaint. But this is not enough to establish malice.
Award of Costs
Nor can the court's minute order be deemed a judgment under section 577. (§ 577 ["A judgment is the final determination of the rights of the parties in an action or proceeding."].) This is not a case in which the order at issue is the final determination of the rights of all of the parties in the action and can therefore be deemed a judgment. (See Melbostad v. Fisher, supra, 165 Cal.App.4th at pp. 995-996.) Section 579 provides: "In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper." We are reviewing the court's order granting the Quinlivan Attorneys' anti-SLAPP motion, which does not resolve the entire action (Young is still a defendant). The court was never asked to exercise its discretion and enter judgment in favor of the Quinlivan Attorneys. Because neither of the parties obtained a final judgment from the court, the 15-day time limit on filing a memorandum of costs never started to run.
The court's order granting the Quinlivan Attorneys' anti-SLAPP motion is affirmed. The court's order awarding attorney fees and costs to the Quinlivan Attorneys is also affirmed. Wilhelmina's motion to submit additional evidence or for writ of error coram vobis is denied. The Quinlivan Attorneys shall recover their costs and attorney fees incurred on appeal in an amount to be determined by the trial court.
Sills, P. J., and Fybel, J., concurred.
"SLAPP is an acronym for `strategic lawsuits against public participation.' [Citation.] A special motion to strike a SLAPP action, codified in . . . section 425.16, provides a procedural remedy to gain an early dismissal of a lawsuit or a cause of action that qualifies as a SLAPP." (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 309, fn. 1 [8 Cal.Rptr.3d 915].)