No. C075959.

WILLIAM A. GILBERT, Plaintiff, Cross-complainant and Appellant, v. THE DENTISTS INSURANCE COMPANY, INC., Defendant, Cross-defendant and Respondent.

Court of Appeals of California, Third District, Butte.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

HULL, Acting P. J.

In this insurance coverage case, an individual dentist — Dr. William A. Gilbert, D.D.S. — claims coverage for lost dental practice income due to a sewage backup in an office building. The building is owned by a partnership (WGS Dental Complex) of which Gilbert is a partner. The partnership had insurance on the building, issued by The Dentist Insurance Company (TDIC). The partnership has no interest in Gilbert's dental practice, yet Gilbert contends the partnership's insurance policy on the building provides coverage for his separate individual dental practice. Gilbert, as cross-complainant, appeals from judgment entered in favor of cross-defendant TDIC after the trial court granted TDIC's motion in limine to exclude any evidence that the policy insures Gilbert as an individual. Gilbert contends the motion was a disguised summary adjudication motion lacking procedural safeguards and deprived Gilbert of his due process right to a fair trial. Gilbert also contends the trial court erred in interpreting the insurance policy as not providing coverage for Gilbert as an individual.

We affirm the judgment.


WGS Dental Complex is a partnership that owns an office building with three dental offices. Although Gilbert complains about consideration of extrinsic evidence, his appellate brief admits the basic facts. The partners of the partnership that owns the building are three individual dentists who conducted individual dental practices in the three offices — Dr. Gilbert, Timothy G. Wall, D.D.S., and Sims W. Lowry, D.M.D. At some time before the sewage backup, Dr. Wall apparently sold his dental practice to a Dr. Steve Lawson, but Wall retained his interest in the partnership that owns the building.

Before 2000, the building was insured through Dr. Wall's policy with TDIC. In June 2000 — before the 2009 sewage backup — the building was removed from Dr. Wall's policy, and TDIC wrote a new building policy for Wall, Lowry, and Gilbert dba WGS Dental Complex.

The application for the new building policy indicated Wall and Lowry had individual policies with TDIC for their individual dental practices, and Gilbert had his own policy with Safeco. Gilbert later switched to Allied Insurance Company. Dr. Lawson obtained his own individual policy with TDIC.

On December 29, 2009, raw sewage from the City's sewer system backed up into the building through toilets and sinks, damaging the building as well as personal property. The back-up necessitated demolition, decontamination, and remediation activities in the building, resulting in lost business income for the individual dentists.

TDIC paid for certain building losses pursuant to its policy with the partnership and then sought to recover in a subrogation action against the City of Oroville alleging negligence, nuisance, and trespass based on the City's planning, design, construction, operation, and maintenance of the sewer system. TDIC also paid personal losses pursuant to its separate individual policies with individual dentists Lowry and Lawson.

A separate complaint for inverse condemnation and nuisance was filed against the City by "TIMOTHY G. WALL, D.D.S., SIMS W. LOWRY, D.M.D., and WILLIAM A. GILBERT, D.D.S., individually and doing business as WGS DENTAL COMPLEX." The complaint alleged the damage occurred as a result of tree root intrusion of the City's main sewer line that caused a blockage that backed up into the office building. TDIC intervened in the inverse condemnation suit.

The trial court consolidated the actions pursuant to the parties' stipulation.

The trial court found the City liable for inverse condemnation, and that decision is the subject of the City's pending petition for writ of mandate filed in this court, for which we issued an alternative writ (case No. C077181).

A cross-complaint against TDIC for breach of contract, breach of implied covenant of good faith, and misrepresentation was filed by "TIMOTHY G. WALL, D.D.S., SIMS W. LOWRY, D.M.D., and WILLIAM A. GILBERT, D.D.S., individually and doing business as WGS DENTAL COMPLEX." The cross-complaint alleged TDIC failed to pay all losses covered by the WGS insurance policy and Dr. Lowry's individual insurance policy.

The trial court granted a motion to bifurcate the cross-complaint against TDIC, which is the subject of this appeal.


TDIC's motion appended various exhibits, including the insurance policy, which expressly incorporates the Application for Coverage, and the Declarations Insert.


The Application for Coverage was signed by Dr. Wall (though Gilbert claims it was filled out by a TDIC employee) and begins with preprinted "Named insured" and boxes for "Individual," "Corporation," "Partnership," "Joint venture," and "Other." The boxes are checked for "Partnership" and "Other." The box for "Individual" is not checked. Handwritten notations squeezed around the boxes show:

"Tim Wall, DDS "Tim Wall, DDS [sic] "Sims Lowry, DDS [sic] "William Gilbert, DDS "WGS Dental Complex."

A number is written on a line for "Social Security no." We will assume for purposes of this appeal that it is a social security number, presumably Dr. Wall's.

Gilbert considers it significant that the application does not state "dba," and that the handwritten notation for "WGS Dental Complex" appears on a preprinted line next to the box for "Other" (though there is no room for it on the preprinted line for "Named insured").

The application contains the following handwritten notations:

"Stand alone Bldg policy [¶] Please delete Bldg and endorsement from Tim Walls policy and rewrite new Bldg policy." "Office has 3 separate suites, w/3 separate entrances. This policy should reflect 3 separate contents with a stand alone building that is owned by the WGS Dental Complex entity. [¶] Dr. Wall has TDIC PL+OP [office property] [¶] Dr. Lowry has TDIC PL+OP [¶] Wm Gilbert has Safeco [¶] See dec inserts included."

Under Wall's signature appears a handwritten notation: "please delete bldg off my policy + add to stand alone policy."

TDIC's motion in limine also submitted Declarations Inserts showing Lowry and Lawson had separate individual policies with TDIC and a TDIC underwriter's deposition testimony that the handwritten notations on the application reflected that the three doctors had separate policies.

The motion asserted Gilbert did not have an individual policy with TDIC but did have an individual policy with a different insurer — at first with Safeco and then later with Allied Insurance Company, which paid Gilbert $5,000 because his policy limited coverage to $5,000 for loss due to sewage. A separate motion in limine by TDIC, which is not at issue in this appeal, argued Gilbert's claim against TDIC was untimely because he did not pursue it until after he found out about the $5,000 limit on his Allied policy.

Although the Declarations Insert for the partnership's policy included under preprinted "Coverage Summary" a category "Coverage D — Dental Practice Income Coverage Loss of Income [¶] Extra Expense [¶] Loss of Rental Income," TDIC submitted evidence and argued it was undisputed that the sole purpose of the partnership was to own and maintain the building, and the partnership does not generate dental practice income. TDIC submitted evidence, including deposition testimony of a TDIC underwriter, and argued Coverage D was simply boilerplate automatically included on the form, that it did not apply to the partnership which did not have dental practice income but might apply if the partnership had rental income from the building, and each dentist had his own separate policy for his individual dental practice.

In response to the trial court's expressed displeasure that the parties did not file their mounds of written in-limine motions before the TRC so the judge could have time to digest them, Gilbert's attorney said at the trial readiness conference (TRC): "We thought that, based on the schedule that was given to us, that the motions in limine would be argued on the first day of trial." The court replied, "No. We start trial. I don't waste the jury's time at all. So you're going to have to get used to that because these people are giving up a considerable amount of their time, and we start right in. So that's — I use the TRC to resolve as much as we can resolve before trial starts." Gilbert's lawyer said, "different courts do it differently," to which the judge said, "You come to my court, you figure out how I work."

Gilbert's lawyer did, however agree at the TRC that "this issue is an issue that should be determined by the Court, that it is a legal issue."

At the TRC, the trial court heard extensive argument from both sides. Gilbert argued the court could not consider extrinsic evidence — specifically the partnership agreement and the fact the individual dentists had separate individual policies. Gilbert argued it was not unusual for there to be multiple insurance policies.

The court took a recess to review the case law, and then granted motion in limine number one, stating "my reading of . . . cases, is that, although it's not preferred, it is available to a trial court to rule on motions like this, not necessarily having a 402 hearing. [¶] In this case, because this is a coverage issue, it's not quite the same as other cases where it's more closely akin to a summary judgment motion. It's a contract of insurance. [¶] The box was checked under the three individuals' names that it was a partnership, and then the partnership was listed. So it's clear that it was intended to be a partnership contract of coverage. So that motion is granted."

On the date set for trial, September 30, 2013 (five days after the TRC), Wall, Lowry, and Gilbert, individually and dba WGS Dental Complex, submitted a motion for reconsideration and a written opposition to motion in limine number one. Since Gilbert is the only appellant and the only party at issue, we hereafter refer just to "Gilbert." Gilbert argued that local rules and practices called for motions in limine to be decided the first day of trial; the motion in limine was a disguised motion for summary adjudication that improperly submitted extrinsic evidence; and the ruling at the TRC denied due process.

The trial court observed that, when the TRC was scheduled, the court notified counsel that it was set for "all-day." The reason was so that the court could consider motions in limine. "So [for counsel] to say that you're bound by the trial court policy [that such motions are determined the first day of trial] regarding the notice that you got is a bit inaccurate. You were informed that we would be dealing with those that day, and that's why we had it start at 10:00 o'clock rather than 3:00 o'clock in the afternoon that is the usual time."

The trial court nevertheless granted the motion for reconsideration, conducted a further hearing before summoning the jury, and reconsidered its ruling.

After reconsideration, the trial court again granted motion in limine number one, stating: "As I said last week, although the case law says that ruling on a motion such as Motion in Limine Number One, which is, if you want to call it that, a disguised motion for summary adjudication, is not favored, it is not prohibited either.

"In this particular case, it seemed to me, and it still does, that all I am doing is interpreting the policy and looking at the face page of the policy, and there's nothing that I need other than that face page to interpret the coverage from that face page for the policy. The face page clearly says the names of the three individuals and marks the box `Partnership.' It does not mark the box `Individual.' So, clearly, they were as a partnership. It added `dba WGS Dental Complex,' which only added an additional piece, which could be considered insured.

"So that was the sum total of that motion in limine. Therefore, it meant that Dr. Gilbert wasn't individually insured. He was insured as a member of the partnership. The consequences of that were not before me. I didn't need any extrinsic evidence to interpret that. I'm not dealing with whether there's partnership income, individual income. I'm merely stating that, to me, the coverage was the partnership, the WGS Dental Complex, and that was it. So beyond that, it's up to the attorneys to figure out what that means vis-à-vis the case going forward. So that's all. I did not rely on any extrinsic evidence to do that, merely the coverage as stated."

After a break for counsel to confer, both parties agreed that there was nothing that needed to be tried by a jury, other issues of the cross-complaint having been resolved, and that the consequence of the trial court's rulings was that judgment should be entered in favor of TDIC and against Dr. Gilbert.

The trial court accordingly entered a judgment of dismissal against Gilbert and in favor of TDIC, stating "as a matter of law . . . [Gilbert] is not entitled to coverage as an individual on policy No. 033608-1-02 for dental practice income and extra expenses under said policy."



Motion in Limine

Gilbert argues that, by granting the motion in limine at the TRC, the trial court violated local rules and practices for such motions to be decided the first day of trial. Gilbert also argues TDIC abused the in-limine process by filing the motion in limine, which was assertedly a disguised motion for summary judgment or summary adjudication (Code Civ. Proc., § 437c), and the trial court's granting of the motion in limine without, according Gilbert, all of section 437c procedural safeguards denied Gilbert of due process and constituted reversible error. We disagree.

A. Local Rules/Practices

As to local rules and practices, Gilbert argues the trial court's granting of the motion in limine at the TRC violated (1) Butte County Local Rules, rule 1.2, which requires motions in limine to be filed and served no later than the TRC and (2) "Judge's Trial Policies" adopted by the Butte County Superior Court, which state that all motions in limine must be served and submitted "at or prior to the first day of scheduled trial" and "[t]he first day of trial is for the purpose of ruling on motions in limine and all other matters that must be resolved before jury selection proceeds."

However, even assuming this judge adopted the county policy that the first day of trial is for ruling on motions in limine, neither the local rule nor policy precludes a judge from ruling on a motion in limine at the TRC. Thus, Gilbert's authorities that courts should follow local rules are not on point. Moreover, California Rules of Court, rule 3.1112(f) states: "Notwithstanding (a) [notice of hearing on motion], a motion in limine filed before or during trial need not be accompanied by a notice of hearing. The timing and place of the filing and service of the motion are at the discretion of the trial judge."

Gilbert suggests the trial court did not have time to read the case law before ruling on the motion in limine at the TRC, because the judge had a doctor's appointment during the lunch recess. However, before ruling on the motion in limine, the trial court took another recess from 2:48 p.m. to 3:34 p.m. and then stated it had reviewed a number of cases.

In any event, insofar as Gilbert complains he was unaware before the TRC that the court would rule on the motion in limine at the TRC, he has no basis for complaint, because the trial court granted Gilbert's motion for reconsideration, considered his written opposition to the motion, and held a new hearing on the motion the first day of trial.

B. Disguised Motion for Summary Judgment/Adjudication

As to Gilbert's contention that the motion in limine was a disguised motion for summary judgment or adjudication, Gilbert cites authority disfavoring — but not prohibiting — the use of in limine motions to dispose of a case or cause of action, i.e., as substitutes for statutory motions that test the factual basis for a claim, because it poses a risk of depriving a litigant of the right to a trial. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530; Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582 (Amtower); R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 333, 369-370 (R & B Auto).)

The practice is disfavored, not prohibited.

"In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial. `"The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. [Citation.] `The advantage of such motions is to avoid the obviously futile attempt to "unring the bell" in the event a motion to strike is granted in the proceedings before the jury.' [Citation.]"' [Citation.] What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure. It has become increasingly common, however, for litigants to utilize in limine motions for this purpose." (Amtower, supra, 158 Cal.App.4th at p. 1593 [affirmed judgment where trial court granted "in limine" motion to exclude all evidence pertaining to one count on ground it was barred by statute of limitations].)

"Appellate courts are becoming increasingly wary of this tactic. [Citation.] . . . The disadvantages of such shortcuts are obvious. They circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe a litigant's right to a jury trial. (Cal. Const., art. I, § 16.) Adherence to the statutory processes would avoid all these risks. Furthermore, these irregular procedures can result in unnecessary reversals. The risk of reversal arises when appellate courts are required to review a dispositive ruling on an in limine motion as if it were the product of a motion for nonsuit after opening statement. `[G]ranting of a nonsuit after an opening statement is a disfavored practice; it will be upheld only when it is clear that counsel has undertaken to state all of the facts which he expects to prove and it is plainly evident that those facts will not constitute a cause of action.' [Citations.] The standard of review in such cases requires that all inferences and conflicts in the evidence be resolved in favor of the losing party and against the judgment. [Citation.] In contrast, on appeal from a judgment following trial, appellate review favors the judgment. [Citation.] Thus, some cases will be subject to reversal where, had the trial court just taken the time to hold a trial, reversal would not be warranted. [Citation.]" (Amtower, supra, 158 Cal.App.4th at pp. 1594-1595.)

"In spite of the obvious drawbacks to the use of in limine motions to dispose of a claim, trial courts do have the inherent power to use them in this way. [Citations.] Courts have inherent power, separate from any statutory authority, to control the litigation before them and to adopt any suitable method of practice, even if the method is not specified by statute or by the Rules of Court. [Citations.] But when the trial court utilizes the in limine process to dispose of a case or cause of action for evidentiary reasons, we review the result as we would the grant of a motion for nonsuit after opening statement [Code Civ. Proc., § 581c], keeping in mind that the grant of such motion is not favored, that a key consideration is that the nonmoving party has had a full and fair opportunity to state all the facts in its favor, and that all inferences and conflicts in the evidence must be viewed most favorably to the nonmoving party." (Amtower, supra, 158 Cal.App.4th at p. 1595 [procedural irregularity was harmless where record shows nonmoving party could not have prevailed under any circumstances]; see also, R & B Auto, supra, 140 Cal.App.4th at p. 358; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-1378.)

Here, the interpretation of the insurance policy presented a question of law, and the record shows Gilbert could not have prevailed under any circumstances.


Interpretation of Insurance Policy

Interpretation of an insurance policy is a question of law governed by established rules of contract interpretation. (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868 (Foster-Gardner).) A contract is interpreted to give effect to the mutual intention of the parties as it existed at the time of contracting. (Civ. Code, § 1636.) If the language of the contract is clear and explicit, its language governs its interpretation. (Civ. Code, § 1638.) If the language is not clear and explicit, it may be explained by reference to the circumstances under which it was made. (Civ. Code, § 1647.) We construe insurance contract provisions as would a layperson. (Milazo v. Gulf Ins. Co. (1990) 224 Cal.App.3d 1528, 1536 (Milazo).)

Ambiguities in an insurance policy will ordinarily be resolved in favor of the insured to protect the insured's reasonable expectation of coverage, but an ambiguity exists only if a provision is capable of two or more reasonable constructions not resolved by application of the rules of interpretation. (Milazo, supra, 224 Cal.App.3d at p. 1537, fn. 9; Fidelity & Deposit Co. v. Charter Oak Fire Ins. Co. (1998) 66 Cal.App.4th 1080, 1088 (Fidelity).) Whether an ambiguity exists is a question of law. (Milazo, supra, 224 Cal.App.3d at p. 1537, fn. 9.) Our review is de novo. (E.M.M.I, Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470.)

Although Gilbert complains about extrinsic evidence, he acknowledges on appeal that "the evidence presented by the parties in connection with Respondent's Motion in Limine No. 1 was not in conflict."

The "Application for Coverage" — which is specifically incorporated into the policy by the policy itself — lists preprinted categories for the insured including "Individual," "Partnership," and "Other." The box for "Partnership" is checked, as is the box for "Other." The box for "Individual" is not checked. The handwritten notation names three dentists and WGS DENTAL COMPLEX, without specifying "dba."

However, the "dba" designation does appear in the Declarations Insert that was expressly made part of the Policy in effect at the time of the sewage backup. The Declarations Insert names as the "Insured:" "TIM WALL, DDS, LOWRY SIMS, DDS, AND WILLIAM GILBERT, DDS, dba WGS DENTAL COMPLEX." The insurance policy defines "You" as "the person or entity named in the Declarations Insert."

Gilbert argues that a layperson reading the application as pre-printed, without the handwritten words, would assume that the box for "Other" was meant to identify a different type of person or entity, such as a Limited Liability Company or Trust. However, Gilbert fails to explain how "Other" could possibly refer to him as an individual, especially when the application contained a separate pre-printed box for "Individual," which was not checked.

Gilbert argues the partnership policy must cover his individual loss of dental practice income, because the policy had Coverage D for loss of dental practice income, and if it did not apply it should have been stricken. However, Coverage D included loss of rental income that might apply to a partnership that owns an office building.

Gilbert is not making any claim on behalf of the partnership for loss to the partnership. He claims loss only for his own individual dental practice, which is separate from loss to the building or partnership. Partnership real property acquired on account of the partnership is owned by the partnership, not by the partners individually — whose interests arises out of personalty. (Corp. Code, § 16501 ["A partner is not a coowner of partnership property and has no interest in partnership property that can be transferred, either voluntarily or involuntarily"]; Tinseltown Video, Inc. v. Transportation Ins. Co. (1998) 61 Cal.App.4th 184, 196-198 (Tinseltown), citing Corp. Code, §§ 15008, 15024-15026.) "A copartner's statutory right to possession of partnership realty does not derive from the copartner's ownership of the realty, which is owned not by the copartner, but by the partnership. The copartner's right to possession of partnership realty also does not derive from a leasehold interest or any other cognizable interest in that property. The copartner's possessory interest in partnership realty is an incident of the copartner's interest in the partnership, which under [Corporations Code] section 15026 is an interest in personalty." (Tinseltown, supra, 61 Cal.App.4th at p. 200.)

In Milazo, supra, 224 Cal.App.3d 1528, two general partners in a limited partnership retail meat market sued one of the limited partners in his capacity as a partner and as an individual for misappropriating an economic opportunity of the partnership. The defendant filed a summary judgment motion on his cross-complaint against an insurer, claiming coverage under a comprehensive general liability insurance policy issued to the partnership. The trial court granted summary judgment, determining the policy covered the defendant-partner both as an individual and as a partner. The appellate court reversed. The policy provisions, read together as a whole, established that the defendant-partner qualified as an "insured" only with respect to his liability as a partner, since the partnership was the named insured. Even though the policy specified both the partnership and the partners, the partners were listed as "dba" and thus as an integral part of the partnership rather than as individuals. (Id. at pp. 1535-1539.) The comprehensive general liability policy expressly provided that each partner was insured "but only with respect to his liability as such [partner]. . . ." (Id. at p. 1536.)

Gilbert argues Milazo is distinguishable because the coverage there was for physical "harm" to tangible property or bodily injury, whereas here the policy covered a different category — loss of dental practice income. Gilbert argues WGS Dental Complex is not itself a dental practice or a member of a dental association, and TDIC's Application for Coverage indicates, "TDIC insurance is limited to members of the state dental association or society who meet current underwriting and eligibility guidelines." The application signed by Dr. Wall lists "CDA" as "Local dental society" and lists someone's social security number. These apparently refer to Dr. Wall. Where the application asks "Does any other TDIC dentist work in your office full time?" the box "No" is checked, but where the application then asks for "Name" appears a handwritten notation "see above dentists." Insofar as Gilbert complains the partnership itself was not entitled to TDIC insurance, Gilbert fails to show how that argument proves he was insured as an individual. It would be an issue only if TDIC denied coverage to the partnership, which it did not do. The policy's reference to "Coverage D — Dental Practice Income" appears to be boilerplate inapplicable to the three partners, each of whom had separate insurance covering his dental practice as stated in the partnership's Application for Coverage.

In Fidelity, supra, 66 Cal.App.4th 1080, homeowners in Pomona, California sued Western Savings & Loan Association (WSLA), doing business as WSLA Development Corporation of California, for construction defects. (Id. at p. 1082.) An insurer of the corporation defended that lawsuit and then sought contribution against a second insurer which had issued the corporation an insurance policy to "`Western Savings & Loan Assoc DBA Marina Inn,'" an Arkansas motel/restaurant that WSLA had acquired through foreclosure. (Id. at p. 1083.) The policy specified the business of the insured was a motel and restaurant in Arkansas, and the premiums were less than $300 per year. (Id. at pp. 1083, 1086.) The appellate court affirmed summary judgment in favor of the second insurer on the ground its policy was expressly limited to risks involved in the operation of the Arkansas motel/restaurant. The general declarations page identified the business of the insured as a motel and restaurant, and the policy specifically identified the status of the named insured as a "motel," not an individual, partnership, or corporation. The modest premiums suggested the second insurer provided coverage for the relatively small risks associated with the motel/restaurant, not the much larger risks associated with all of WSLA's projects. (Id. at pp. 1086-1987.)

Gilbert argues, without elaboration, that Fidelity has no application here because it had different facts. But, as in that case, here the policy plainly limited coverage to the "dba" partnership.

Gilbert suggests TDIC slipped in the "dba" on the Declarations Insert without alerting anyone it had done so. He offers no authority as to any legal significance of this claim and, as noted by TDIC, pleadings were filed in this case by Wall, Lowry, and Gilbert "individually and doing business as WGS DENTAL COMPLEX."

The application on its face makes clear that the purpose of the application was to delete the building from Dr. Wall's policy and write a new policy for the building, and that each of the three partners had a separate individual policy for his individual dental practice.

We conclude Dr. Gilbert fails to show grounds for reversal.


The judgment of dismissal in favor of TDIC and against Gilbert is affirmed. TDIC shall recover costs on appeal from Gilbert. (Cal. Rules of Court, rule 8.278(a).)

ROBIE, J. and MAURO, J., concurs.


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