Filed 2/26/20 Aghili v. El Clasificado CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DIANA AGHILI,

Plaintiff and Appellant,

v.

EL CLASIFICADO,

Defendant and Respondent. B292526

Los Angeles County

Super. Ct. No. BC645857

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory Keosian, Judge. Affirmed.

Doumanian & Associates and Nancy P. Doumanian for Plaintiff and Appellant.

Musick, Peeler & Garrett, Peter J. Diedrich, Barbora Pulmanova and Kiersten A. Wiens for Defendant and Respondent.

_______________________________________

INTRODUCTION

Plaintiff and appellant Diana Aghili (plaintiff) brought the present action against her former employer, El Clasificado, alleging mainly that the company terminated her employment because of her age and/or gender in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). El Clasificado moved for summary judgment and/or adjudication and presented evidence that it laid plaintiff off due to financial difficulties the company had been experiencing. The trial court granted the motion for summary judgment because plaintiff failed to present evidence that El Clasificado’s proffered rationale was either false or a pretext designed to conceal discriminatory animus. We agree and affirm.

FACTS AND PROCEDURAL BACKGROUND

El Clasificado is a Spanish-language media company that publishes and distributes a circular consisting mainly of classified advertisements. Approximately 98 percent of El Clasificado’s revenue comes from the sale of advertising in its publications.

Plaintiff began working for El Clasificado in May 2008 as a mid-market account executive in the company’s national sales department. She was promoted to senior national sales manager in June 2011 and received another promotion at some point during 2012.

In 2014 and 2015, El Clasificado saw a decrease in revenue generated by print advertising sales. In August 2014, El Clasificado restructured its sales teams, moving all three members of the national sales team to the local sales team. As part of the 2014 restructuring, plaintiff’s base salary was lowered by $20,000 per year and certain benefits were reduced. Her job responsibilities were also adjusted, in that she was no longer required to supervise other employees. One of the other team member’s salary was also reduced to reflect the lower salary of local team members. The other member of the team did not receive a salary reduction because his salary was already at that lower level. All three national sales team members had their benefits adjusted at that time.

After she was transferred to the local sales team, plaintiff was reassigned to a sales territory in the San Fernando Valley. She was given eight to 10 existing local advertising accounts developed by a former employee and was required to secure new accounts.

Plaintiff considered her new assignment to be a demotion. She was also the only woman over the age of 40 (the other two members of the team were male and under the age of 40) whose job was restructured.

El Clasificado’s standards of performance for 2015 set out expectations for all employees in the local sales department, including minimum numbers of accounts each employee was expected to manage. For example, representatives who worked more than two years in a territory were expected to manage a minimum of 35 accounts, while those with less than two years in their assigned territory were expected to manage 30 accounts. Representatives with a weekly average of fewer than 20 accounts over a one month period were subject to additional activity targets. For the month immediately prior to her employment termination, plaintiff generated no new accounts and managed an average of 13.5 accounts, placing her at or near the bottom of performance in the local sales department.

El Clasificado terminated plaintiff’s employment on May 26, 2015. Plaintiff’s supervisor was told that plaintiff’s position was being eliminated and she was being laid off due to financial difficulties at El Clasificado. El Clasificado did not lay off any other employees in 2015.

Plaintiff filed a complaint against El Clasificado alleging the company wrongfully terminated her employment because of two legally-protected characteristics, her age (over 40 years old) and her gender (female). The complaint contains ten causes of action: (1) gender discrimination in violation of FEHA; (2) age discrimination in violation of FEHA; (3) retaliation in violation of FEHA; (4) wrongful employment termination in violation of public policy; (5) retaliatory discharge in violation of public policy; (6) failure to prevent harassment, discrimination or retaliation in violation of FEHA; (7) negligence; (8) negligent infliction of emotional distress; (9) intentional infliction of emotional distress; and (10) breach of express and implied contract not to terminate employment without good cause.

El Clasificado moved for summary judgment and/or summary adjudication. Mainly, the company argued plaintiff would be unable to prevail on her FEHA claims because she had not been performing her job competently at the time her employment was terminated. El Clasificado argued and presented evidence that it terminated plaintiff’s employment because she was performing poorly and due to the company’s financial needs. As to plaintiff’s retaliation claim, El Clasificado observed that plaintiff admitted she never complained that she was being mistreated on the basis of a protected characteristic, and therefore would be unable to establish that she engaged in any protected activity, as required. With the exception of the breach of contract claim, the remaining claims were derivative of the FEHA claims and would therefore fail as well. Finally, as to the claim that El Clasificado breached a contract not to terminate plaintiff’s employment without good cause, the company noted that plaintiff had testified that she was an at-will employee and had not entered into an agreement with El Clasificado to the contrary.

The court granted summary adjudication as to each of plaintiff’s causes of action. With respect to the FEHA discrimination claims, the court found that a dispute of material fact existed as to whether plaintiff had been performing her job competently prior to her employment termination. But even assuming she was performing competently, plaintiff would still need to establish a discriminatory motive for El Clasificado’s actions. The court determined she failed to create a dispute of fact on that issue. Specifically, although plaintiff suggested that El Clasificado wrongfully terminated the employment of several other women over 40, she failed to introduce substantial evidence on that point. Further, although plaintiff argued that other members of the national sales team were not subjected to the same salary and benefit reductions imposed on her, the evidence contradicted her argument.

As to plaintiff’s retaliation claim, the court observed, as El Clasificado pointed out, that plaintiff admitted she had not engaged in any protected conduct—a fact fatal to the claim. And because plaintiff’s remaining tort claims were derivative of her FEHA claims, they failed as well. Finally, the court found in favor of the company on plaintiff’s breach of contract claim because plaintiff was unable to establish the existence of a contract requiring El Clasificado to terminate her employment only for good cause.

The court entered judgment in favor of El Clasificado on July 12, 2018. This timely appeal followed.

DISCUSSION

Plaintiff contends the court erred in granting El Clasificado’s motion for summary judgment. The court did not err.

1. Standard of Review
2.
The applicable standard of review is well established. “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) As such, the summary judgment statute (Code Civ. Proc., § 437c), “provides a particularly suitable means to test the sufficiency of the plaintiff’s prima facie case and/or of the defendant’s [defense].” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) A summary judgment motion must demonstrate that “material facts” are undisputed. (Code Civ. Proc., § 437c, subd. (b)(1).) The pleadings determine the issues to be addressed by a summary judgment motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, reversed on other grounds by Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

On appeal from a summary judgment, we review the record de novo and independently determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment. (Saelzler, at p. 768.) “In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue.’ ” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.) “We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Ibid.)

3. Legal Analysis of Workplace Discrimination Claims
4.
As pertinent here, FEHA prohibits an employer from discharging a person from employment because of age or gender. (Gov. Code, § 12940, subd. (a).)

“ ‘In California, courts employ at trial the three-stage test that was established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, to resolve discrimination claims … . [Citation.] At trial, the employee must first establish a prima facie case of discrimination, showing “ ‘ “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion … .’ ” ’ ” ’ (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2 (Reid).) A prima facie claim arises ‘when the employee shows (1) at the time of the adverse action [he was a member of a protected class], (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job’ (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003 (Hersant)), and (4) the adverse action occurred ‘under circumstances which give rise to an inference of unlawful discrimination.’ (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253.) ‘Once the employee satisfies this burden, there is a presumption of discrimination, and the burden then shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. [Citation.] A reason is “ ‘legitimate’ ” if it is “facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.” [Citation.] If the employer meets this burden, the employee then must show that the employer’s reasons are pretexts for discrimination, or produce other evidence of intentional discrimination.’ (Reid, at p. 520, fn. 2, italics omitted.)

“In the context of a defense motion for summary judgment, ‘[a]ssuming the complaint alleges facts establishing a prima facie case that unlawful disparate treatment occurred, the initial burden rests on the employer (moving party) to produce substantial evidence (1) negating an essential element of plaintiff’s case or (2) (more commonly) showing one or more legitimate, nondiscriminatory reasons for its action against the plaintiff employee … . [¶] … The burden then shifts to the plaintiff employee (opposing party) to rebut defendant’s showing by producing substantial evidence that raises a rational inference that discrimination occurred; i.e., that the employer’s stated neutral legitimate reasons for its actions are each a “pretext” or cover-up for unlawful discrimination, or other action contrary to law or contractual obligation.’ (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2016) ¶¶ 19:728 to 19:729, p. 19-121, italics omitted.) By applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘ “the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.” ’ [Citation.]” (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 38–39 (Nakai).)

5. The court properly granted summary adjudication in favor of El Clasificado on plaintiff’s age and gender discrimination claims.
6.
We first address plaintiff’s causes of action for age and gender discrimination under FEHA and consider each of the three burden-shifting stages of the McDonnell Douglas test discussed above: whether plaintiff alleged a prima facie case of discrimination, whether El Clasificado produced substantial evidence that it terminated plaintiff’s employment for a legitimate, nondiscriminatory reason, and whether plaintiff presented substantial evidence that the stated reason for her employment termination was pretextual and intended to conceal a discriminatory motive.

6.1. Plaintiff alleged a prima facie case of age and gender discrimination.
6.2.
Plaintiff’s first two causes of action allege a prima facie case of age and gender discrimination under FEHA. Specifically, plaintiff alleged (1) she is over 40 years of age and is female, (2) El Clasificado demoted her and ultimately terminated her employment, (3) she was well-qualified for her position and was performing her job adequately, and (4) El Clasificado’s explanation for her employment termination is pretextual.

6.3. El Clasificado produced substantial evidence that it terminated plaintiff’s employment for a legitimate, non-discriminatory reason.
6.4.
When an employee satisfies his or her initial burden to make a prima facie case, “ ‘the burden then shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. [Citation.] A reason is “ ‘legitimate’ ” if it is “facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.” [Citation.] If the employer meets this burden, the employee then must show that the employer’s reasons are pretexts for discrimination, or produce other evidence of intentional discrimination.’ (Reid, [supra, 50 Cal.4th] at p. 520, fn. 2, italics omitted.)” (Nakai, supra, 15 Cal.App.5th at pp. 38–39.)

In support of its motion, El Clasificado proffered two legitimate, nondiscriminatory reasons for terminating plaintiff’s employment: plaintiff failed to meet company-wide sales goals, and the company eliminated plaintiff’s position for financial reasons. Much of plaintiff’s argument focuses on El Clasificado’s contention that she was underperforming. As plaintiff notes, both parties presented a great deal of evidence concerning plaintiff’s work performance and the court found that disputes of material fact existed on that issue. We find it unnecessary, however, to parse that evidence because El Clasificado’s alternative rationale is supported by substantial evidence.

El Clasificado asserts that it decided to lay off plaintiff in May 2015 in part due to the company’s financial condition. The company’s chief operating officer, Joe Badame, explained that El Clasificado suffered a decline in print advertising revenue (the company’s primary source of income and the focus of plaintiff’s sales efforts) from 2011 through the present, and further noted that 2014 and 2015 were “particularly hard years for the company.” Martha de la Torre, the company’s chief executive officer, confirmed that the company experienced “a significant decline in print revenues for a portion of 2014-2015.” A profit and loss statement attached to de la Torre’s declaration shows that as of June 30, 2015, the company’s total print advertising revenue was down more than $1 million, or just over 11 percent, year over year. And although plaintiff characterizes that loss of income as “trivial” and claims “[t]he company was not having any financial difficulties,” she does not dispute the accuracy of the profit and loss statement and even concedes that it shows a 7.5 percent reduction in overall corporate income for the second quarter of 2015 (which corresponds to the date her employment was terminated), as compared to the same period in 2014.

The company’s stated rationale for plaintiff’s employment termination is consistent with its actions at the relevant time. When El Clasificado terminated plaintiff’s employment, plaintiff met with her supervisor and de la Torre. At that time, plaintiff was told that her position was being “eliminated” and that “the company was going to take a different approach.” According to plaintiff, no one raised the issue of job performance during the meeting. Similarly, plaintiff’s supervisor was told that plaintiff’s employment was not being terminated due to performance problems and that, instead, plaintiff’s position was being eliminated. And in fact, plaintiff’s territory was reassigned to other sales representatives after she was laid off.

El Clasificado also established that financial strain led to the elimination of the national sales team in 2014, approximately nine months before plaintiff was laid off. De la Torre attested that in August 2014, “due to the company’s declining revenues and perceived inconsistent performance of the National Sales team,” she and the senior director of sales “determined that it was in El Clasificado’s best interest to eliminate the National Sales team.” Badame agreed. Plaintiff acknowledges she was told in 2014 that the sales team restructure was happening “because the company wasn’t doing well.”

Because El Clasificado offered substantial evidence that it terminated plaintiff’s employment for a legitimate, nondiscriminatory reason, we now consider whether plaintiff has adduced substantial, specific evidence that raises a rational inference of falsity and/or pretext sufficient to create a triable issue of material fact.

6.5. Plaintiff failed to offer any substantial evidence of falsity and/or pretext.
6.6.
Under FEHA, even if a workforce reduction is justified for economic reasons, it does not preclude a finding that the employer engaged in illegal discrimination in deciding which individual workers to retain and release. (Guz, supra, 24 Cal.4th at p. 358.) The issue is whether the employer acted with a motive to discriminate illegally. (Ibid.) An employee may offer direct or indirect evidence of the employer’s discriminatory intent. In either case, the employee “must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant, supra, 57 Cal.App.4th at pp. 1004–1005.)

Plaintiff does not offer any direct evidence of discrimination. That is, she does not suggest, nor is there any evidence, that anyone at El Clasificado ever implied that her age or gender were factors in her termination. Both of El Clasificado’s executive officers denied that either age or gender was a factor in the company’s decision to terminate plaintiff’s employment. And for her part, plaintiff could not recall a single instance in which anyone at El Clasificado ever treated her differently because of or commented in a discriminatory manner on her age or gender.

Nevertheless, plaintiff urges that El Clasificado’s proffered reason for terminating her employment is pretextual. First, plaintiff directly attacks El Clasificado’s assertion that it was experiencing financial difficulty at the time it terminated her employment. Plaintiff contends, in fact, that El Clasificado was, and is, “prospering” financially and that “the claim of financial insolvency is false and untrue.” She supports her argument with several undisputed facts. First, El Clasificado did not lay off any other employees in 2015. This fact does suggest that El Clasificado was not under severe financial distress, and it could support an inference that El Clasificado elected to terminate plaintiff’s employment for reasons other than financial distress. On its own, however, it does not suggest that El Clasificado acted with discriminatory animus. (See Guz, supra, 24 Cal.4th at pp. 360–361 [noting “an inference of intentional discrimination cannot be drawn solely from evidence … the company lied about its reasons”].)

Second, plaintiff attempts to undermine El Clasificado’s credibility by suggesting that during the litigation, the company asserted multiple, new reasons for its decision to terminate her employment. An employer’s implausible or shifting justifications may, together with other evidence, assist an employee in proving that the employer’s stated reasons for its action are a pretext designed to conceal a discriminatory motive. (See Guz, supra, 24 Cal.4th at pp. 360–363 [noting “[p]roof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons”].) Plaintiff claims, for example, “[d]uring the litigation, the employer raises new reasons for appellant’s termination including poor job performance, poor sales performance, attendance issues, and financial difficulties the company is experiencing. [Record citations.] The employer now claims that it experienced a financial downturn and loss of business as a reason for appellant’s firing.” At the core, however, these are the same two reasons El Clasificado advanced all along: Plaintiff was laid off due to performance problems and the company’s financial needs. And in any event, an inference of intentional discrimination cannot be drawn solely from proof that the employer’s stated reasons are unworthy of belief. “The pertinent statutes do not prohibit lying, they prohibit discrimination.” (Id. at p. 361.)

The other undisputed facts plaintiff highlights do not support plaintiff’s position that El Clasificado was motivated by discriminatory animus. Plaintiff notes, for example, that an employee in the human resource department at El Clasificado was unaware that plaintiff was being laid off for financial reasons. Lack of knowledge on the part of another employee, however, would not reasonably support an inference that El Clasificado acted with discriminatory intent. Similarly, plaintiff states she was never given a written notice of employment termination that identified the reason for her dismissal. The supporting evidence she cites, however, does not address that point.

Plaintiff also notes that El Clasificado hired 13 new employees in 2015 after it terminated her employment. Certainly, if El Clasificado immediately replaced plaintiff with a younger and/or male employee, that fact could support an inference that it acted with discriminatory intent. (See Guz, supra, 24 Cal.4th at pp. 366–367 [confirming evidence that an age-protected worker was replaced by a “significantly younger” person may permit an inference of intentional age discrimination].) But plaintiff does not refute El Clasificado’s evidence regarding the demographics of its employees—evidence that strongly suggests El Clasificado does not have a pattern or practice of discriminating on the basis of either gender or age. Specifically, de la Torre explained that in 2014, the outside sales department consisted of 12 people under 40 years old, 33 people over 40 years old, and 4 people that turned 40 years old that year. Those employees were split almost equally by gender: 25 were men and 24 were women. In addition, El Clasificado acknowledges that it hired 13 new employees in the outside sales department in 2014 and 2015, around the time plaintiff was laid off. Of those, five were female and eight were male, nine were over 40 years old and four were under 40 years old.

Plaintiff also argues that the other two members of the national sales team—both of whom were male and under 40 years old—were treated more favorably than she was during the 2014 restructuring, thus suggesting El Clasificado acted in a discriminatory manner. Specifically, she contends that while her salary was reduced by $20,000, her benefits were changed, and she lost her management responsibilities and book of business, the two other employees “did not experience similarly drastic changes to their employment portfolios.” Her argument is simply one of degree, however. Plaintiff does not dispute the fact that the younger male employees’ new salary and benefits were equal to or less than hers. She essentially argues that because she received greater benefits and a higher salary prior to the 2014 restructuring, the accompanying salary and benefit adjustment affected her to a greater degree. That is not evidence of discrimination, however. As the trial court noted, it is evidence that El Clasificado treated all the affected employees similarly.

Finally, plaintiff asserts that El Clasificado had a pattern of discriminating against women over the age of 40. She claims that three former employees—each of whom is female and was over the age of 40 at the time El Clasificado terminated her employment—were “mistreated on the job due to their gender, age, or physical disability.” In an employment discrimination or harassment case, evidence that similarly-situated employees suffered from the same type of discrimination or harassment alleged by a plaintiff may be relevant and admissible to show an employer’s discriminatory intent. (See, e.g., Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 759 [holding declarations by former employees who stated they had been discriminated against or harassed on same basis as plaintiff were relevant, admissible, and sufficient to defeat employer’s motion for summary judgment].) Here, however, plaintiff fails to offer evidence that other employees experienced discrimination. (E.g., Johnson, pp. 761–762 [summarizing declarations of former employees discussing discrimination they experienced while working for defendant employer].) Instead, plaintiff offers only allegations. Specifically, plaintiff asked the court to take judicial notice of complaints filed by two former employees of El Clasificado who alleged they had been the victims of discrimination by the company. As the court noted, however, it could only take judicial notice that the complaints existed and contained certain allegations. It could not take judicial notice of the truth of those allegations. (See, e.g., Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1567 [noting “it was proper to take judicial notice that a civil first amended complaint made certain allegations, so long as judicial notice of the truth of those allegations was not taken”].)

In sum, we conclude plaintiff failed to demonstrate the existence of a dispute of material fact concerning her first and second causes of action for age and gender discrimination under FEHA. We need not address, therefore, causes of action four through nine, which plaintiff conceded below are derivative of her FEHA discrimination claims.

7. The court properly granted summary adjudication on plaintiff’s retaliation claim.
8.
In order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814–815.)

Although plaintiff’s complaint includes a cause of action for retaliation in violation of FEHA, plaintiff’s opposition to El Clasificado’s motion for summary judgment did not address that cause of action. And at oral argument on the motion, plaintiff’s counsel submitted on the court’s tentative ruling granting summary adjudication on that cause of action without presenting any argument. By failing to defend the retaliation claim, plaintiff effectively conceded El Clasificado’s point.

In any event, and as the court noted, plaintiff admitted during her deposition that she could not recall ever complaining to anyone at El Clasificado that she had been treated in a discriminatory manner. In other words, plaintiff conceded that she never engaged in any protected activity—an admission that is fatal to her retaliation claim. (See, e.g., Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043 [noting “an employee’s conduct may constitute protected activity for purposes of the antiretaliation provision of the FEHA not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA”].)

For both these reasons, we conclude the court properly granted the motion for summary adjudication on plaintiff’s third cause of action.

DISPOSITION

The judgment is affirmed. Respondent El Clasificado shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.