Preview
. B , ®
[Exempt From Filing Fee
Government Code § 6103]
FAGEN FRIEDMAN & FULFROST, LLP F ILED
David R. Mishook, SBN 273555 ALAMEDA COUNTY
=
dmishook@f3law.com
NO
70 Washington Street, Suite 205
Oakland, California 94607
&»
Phone: 510-550-8200
Fax: 510-550-8211
FF
Attorneys for American Indian Model Schools
ua
Dn
NI
CoO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE
So
S&C
—_
BEN CHAVIS, an individual, CASE NO. RG-21099652
—_
YF
Fagen Friedman & Fulfrost, LLP
Main 510-550-8200 * Fax 510-550-8211
Plaintiff, ASSIGNED FOR ALL PRE-TRIAL
—_
KR
BY FAA
70 Washington Street, Suite 205
PURPOSES TO
Oakland, California 94607
vs. JUDGE STEPHEN M. PULIDO
O&O
—_
DEPARTMENT 517
AMERICAN INDIAN MODEL SCHOOLS, a
fF
—_
California not for profit corporation, and DEFENDANT AMERICAN INDIAN
DOES 1 through 50, inclusive, MODEL SCHOOLS’ REPLY IN
Aa
SUPPORT OF ITS DEMURRER TO
Defendants. PLAINTIFF’S FIRST AMENDED
BD
—_—
COMPLAINT
HA
Judge: Hon. Stephen M. Pulido
mm
TF
Action Filed: May 19, 2021
Trial Date: None Set
CO
vt
Date: January 4, 2022
OO
N
Time: 3:00 p.m.
SF&F
Dept.: 517
N
Reservation: R-2295350
NY
N
WO
oN
/// :
FF
mm
//1
nN
A
///
Dn
N
///
N
CSN
///
N
Case No. RG-21099652
DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER
TO AMENDED COMPLAINT
Defendant American Indian Model Schools (“AIMS”) hereby submits this reply in support
of its Demurrer to Plaintiff Ben Chavis’s First Amended Complaint (“FAC”).
Ne
I. INTRODUCTION
SB
Following an indictment in March 2017 on three counts mail fraud and three counts money
FF
laundering, on January 15, 2019, Plaintiff Ben Chavis pleaded guilty to a superseding criminal
A
information charging him with one count of conspiracy—a felony. To be clear, Plaintiff was not
ABABA
acquitted of any of the prior charges. There was no official exoneration of Plaintiff. Rather than go
to trial, as part of a plea deal, Plaintiff alleges he admitted that he specifically intended to commit
fF
the crime of criminal conspiracy.
we
The question posed by AIMS’s demurrer to Plaintiff's FAC is whether, under the legal
|
So
ee
precedent provided by AIMS, Plaintiffs Director’s Contract which provided that AIMS would
—
Fagen Friedman & Fulfrost, LLP
Main 510-550-8200 © Fax 510-550-8211
“cover” legal fees in any action brought against Plaintiff “relating to the school” could be legally
N
70 Washington Street, Suite 205
ee
Oakland, California 94607
interpreted to apply to reimbursement for Plaintiffs legal costs related to his criminal conviction.
Oe
Plaintiff alleges that his legal fees must be reimbursed both under his interpretation of the “plain
>
language” of the Director’s Contract and must otherwise be reimbursed under Labor Code section
NM
2802. Plaintiff goes so far as to imply that his criminal conviction was a victory that vindicated
Nn
actions he alleges were taken solely for the benefit of AIMS.
lUlOlCOCSS
In opposing AIMS’s demurrer, Plaintiff attempts to distract this Court from two simply legal
principles cited by AIMS. First, a private indemnity or defense agreement, like the one in the
Director’s Contract—interpreted strictly against the indemnitee in accordance with public policy—
Oo
-_~—
must clearly and explicitly provide for indemnification and defense above and beyond third-party
>
civil actions. Here, in the absence of clear and explicit language to the contrary, the Director’s
N
Contract’s defense cost provision cannot apply to Plaintiff's criminal prosecution. Second, section
Ww
>
2802 precludes indemnity for actions which the employee knew were unlawful.at the time the
a:
>
employee took those actions. Here, because Plaintiff admitted in federal court that he knowingly
Nn
>
and intentionally conspired to commit an unlawful act, section 2802 does not apply.
>
nN
ST
While Plaintiff seeks to raise factual a about the intent and interpretation of the
~
LL
Director’s Contract, the simple facts that, one, Plaintiff was convicted in criminal court after a plea
Ce
2 Case No. RG-21099652
DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER
TO AMENDED COMPLAINT
, 8 6
of guilty to a specific intent crime and, two, the Director’s Contract does not clearly and explicitly
=
provide for payment of criminal defense costs, means that AIMS’s demurrer must be granted and
YO
Plaintiff's causes of action must be dismissed against AIMS with prejudice.
OO
Il. ARGUMENT
FF
A. Plaintiff Inappropriately Seeks to Narrow the Legal Holding of City of Bell
A
In his opposition, Plaintiff alleges that AIMS’s citation to City of Bell v. Superior Court,
DB
(2013) 220 Cal.App.4th 236, for its argument that the Director’s Contract cannot be interpreted to
FH
apply to criminal defense costs is “grossly misleading.” (Opp. at 5:9.) According to Plaintiff, City
of Bell spoke only to the application of an employment contract to first-party indemnity (i.e.,
Ceo
indemnity in actions between the contracting parties) and not to any analogous situation. (Opp. at
lUlwehDelUCU Nl elUcUOlUlCCOClClUCOeWDWDmmUCUCUGNTClCOCANOU
hU SEPlhlhUh Eh
7:8-10.) Plaintiff continues that the “unambiguously broad” language of the Director’s Contract
Nec
Fagen Friedman & Fulfrost, LLP
© Fax 510-550-8211
applies to criminal prosecution as equally as to third-party civil actions and that the “course of
70 Washington Street, Suite 205
Oakland, California 94607
performance” of AIMS in paying for Plaintiff's defense costs for a time “reinforces the construction
UF
MLO
urged by Plaintiff.” (Opp. at 8:3-9.)
Ff
Main 510-550-8200
While City of Bell did address, in part, first-party indemnity, Plaintiff appears to ignore that
FEF
the section cited by AIMS directly addresses the applicable contract interpretation that should be
FF
applied to claims of criminal defense obligations arising from an indemnity and defense clause.
FF
Specifically, the Court of Appeal in City of Bell explained that a noninsurance indemnity provision
F&F
(and, by extension, a noninsurance defense provision) must be “clear and explicit” to protect
“beyond those [protections] afforded by the doctrines of implied or equitable indemnity.” (City of
NV
Bell, supra, 220 Cal.App.4th at p. 250.) These implied or equitable protections extend only to third-
NK
party civil claims, and an indemnification clause that does not explicitly provide otherwise cannot
NK
be construed to be more expansive. (Ibid., citing Queen Villas Homeowners Assn. v. TCB Property
NY
Management (2007) 149 Cal.App.4th 1, 6.
ek
NK
Applying these principles to the employment agreement underlying the case, the Court of
tN
NK
Appeal did not rely solely on the specific language in that agreement. In holding that the indemnity
NY
NO
agreement at issue did not extend to criminal defense costs, the Court first observed that the daty to
NYO
defend is (absent language to the contrary) coextensive with the duty to indemnify. (City of Bell,
co
ny
3 Case No. RG-21099652
DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER
TO AMENDED COMPLAINT
=
supra, 220 Cal.App.4th at p. 251.) The Court then observed that with regard to first-person claims,
“In order for an indemnity agreement to encompass claims between the parties to the agreement . . .
NY
there must be clear and explicit language to that effect.” (Jd. at p. 252.) “We believe the same
—]
conclusion applies to the issue of whether a defense is owned for criminal actions.” (Jd. at p. 253.)
FF
Plaintiff spends considerable time arguing that the contract in City of Bell contained language
A
DNDN
contrary to an interpretation that it applied to criminal defense costs. However, the Court’s
application of indemnity principles was based, first and foremost, on the Jack of clear and explicit
KH
Pe
language in the indemnity provision that applied either to first-party indemnification or criminal
defense. (Id. at p. 252 [No such language is present in the agreement before us.”].) That the
So
indemnification agreement in that case also contained language inconsistent with the ex-employee’s
lt
CC
interpretation simply reinforced the Court’s holding. (bid. [“Indeed, there is language indicating a
FB
lk
Fagen Friedman & Fulfrost, LLP
¢ Fax 510-550-8211
contrary intent.”].)
NYO
70 Washington Street, Suite 205
mmm
Oakland, California 94607
In the instant case, it is not true that AIMS seeks to introduce parole evidence to defeat
|
Plaintiff’ s contract action at the pleading stage. Rather, if anything, Plaintiff seeks to obfuscate from
FF
Main 510-550-8200
the lack of clear and explicit language on the face of the Director’s Contract that would, under City
Un
om
of Bell, be required for Plaintiff's interpretation of the agreement to prevail. Plaintiff insists that the
WB
om
language of the Director’s Contract controls. AIMS seeks solely to apply contract interpretation
mm
TBH
principles to demonstrate that, as a matter of law, Plaintiffs first cause of action must fail.
mm
CBO
Finally, the implication that AIMS’s “course of performance” proves the veracity of
CHO
Plaintiff's interpretation is the sort of introduction of parole evidence Plaintiff otherwise argues has
Co
no place in interpreting the Director’s Contract. (Opp. at 8:6-7.) Regardless, even on its face,
§=|§
NHN
Plaintiff's proposed course of performance does not address the proper interpretation
NY
of the
VN
Director’s Contract for the simple fact that, as Plaintiff readily alleges in his FAC, his defense costs
NR
Oo
were paid by AIMS’s insurance. When that insurance reached its limits, payment for Plaintiff's
F&F»
NY
defense costs ceased. There are no allegations that AIMS’s insurance paid Plaintiff's criminal
NY
a
defense costs because of:an employment contract to which the insurance carrier was not a party. It
DB
NY
is rather much more straightforward and logical to conclude that insurance paid for Plaintiff's
Ao
NY
defense costs because the insurance policy called for it to do so.
Se
Nv
4 Case No. RG-21099652
DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER
TO AMENDED COMPLAINT
. | @
=
“[PJublic policy concerns influence” how noninsurance indemnity, and by extension
defense, agreements are construed. (City of Bell, supra, 220 Cal.App.4th at p. 250.) “As such, if a
NY
party seeks, in a noninsurance agreement, to be indemnified for protections beyond those afforded
WO
by the doctrines of implied or equitable indemnity . . . the language on the point must be particularly
FF
clear and explicit and will be construed strictly against the indemnitee.” (Jbid., citing Crawford v.
aA
Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 552.) Here, the Director’s Contract neither
NDB
explicitly nor clearly applies to criminal defense costs. For these reasons, construed strictly against
fF
Plaintiff, Plaintiffs first cause of action must be dismissed.
B. Plaintiff's Plea of Guilty to a Specific Intent Crime Precludes Application of
So
Labor Code section 2802.
hl =
OOOBlhlUlUmCUCUCGNCCCANCOhOCUlUDlUlCUCOMDUCUCUNSLUlULDlCUCO
Plaintiff's opposition claims that his cause of action under Labor Code section 2802 must
ES
Fagen Friedman & Fulfrost, LLP
¢ Fax 510-550-8211
survive demurrer by implying that section 2802 is absolute in an employer’s responsibility to
Ff
70 Washington Street, Suite 205
Oakland, California 94607
indemnify its employees. This is, however, not true. While section 2802 requires indemnification of
FF
an employee for the direct consequences of the discharge of his or her duties “even if unlawful,”
FF
Main 510-550-8200
section 2802 explicitly excludes actions that an employee takes when that employee believes the
FSF
actions to be unlawful. Plaintiff was subject to a criminal prosecution that resulted in a conviction
FF
for the specific intent crime of conspiracy. That conviction, here by plea, is by its very nature a
F
judicial admission that Plaintiff engaged in actions he knew were unlawful. (Dowie v. Fleishman-
FF
Hillard Inc. (9th Cir. 2011) 422 Fed.Appx. 627, 629.)
F-
Plaintiff, conspicuously, cannot provide this Court with any authority that section 2802
Preview
. B , ® [Exempt From Filing Fee Government Code § 6103] FAGEN FRIEDMAN & FULFROST, LLP F ILED David R. Mishook, SBN 273555 ALAMEDA COUNTY = dmishook@f3law.com NO 70 Washington Street, Suite 205 Oakland, California 94607 &» Phone: 510-550-8200 Fax: 510-550-8211 FF Attorneys for American Indian Model Schools ua Dn NI CoO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE So S&C —_ BEN CHAVIS, an individual, CASE NO. RG-21099652 —_ YF Fagen Friedman & Fulfrost, LLP Main 510-550-8200 * Fax 510-550-8211 Plaintiff, ASSIGNED FOR ALL PRE-TRIAL —_ KR BY FAA 70 Washington Street, Suite 205 PURPOSES TO Oakland, California 94607 vs. JUDGE STEPHEN M. PULIDO O&O —_ DEPARTMENT 517 AMERICAN INDIAN MODEL SCHOOLS, a fF —_ California not for profit corporation, and DEFENDANT AMERICAN INDIAN DOES 1 through 50, inclusive, MODEL SCHOOLS’ REPLY IN Aa SUPPORT OF ITS DEMURRER TO Defendants. PLAINTIFF’S FIRST AMENDED BD —_— COMPLAINT HA Judge: Hon. Stephen M. Pulido mm TF Action Filed: May 19, 2021 Trial Date: None Set CO vt Date: January 4, 2022 OO N Time: 3:00 p.m. SF&F Dept.: 517 N Reservation: R-2295350 NY N WO oN /// : FF mm //1 nN A /// Dn N /// N CSN /// N Case No. RG-21099652 DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER TO AMENDED COMPLAINT Defendant American Indian Model Schools (“AIMS”) hereby submits this reply in support of its Demurrer to Plaintiff Ben Chavis’s First Amended Complaint (“FAC”). Ne I. INTRODUCTION SB Following an indictment in March 2017 on three counts mail fraud and three counts money FF laundering, on January 15, 2019, Plaintiff Ben Chavis pleaded guilty to a superseding criminal A information charging him with one count of conspiracy—a felony. To be clear, Plaintiff was not ABABA acquitted of any of the prior charges. There was no official exoneration of Plaintiff. Rather than go to trial, as part of a plea deal, Plaintiff alleges he admitted that he specifically intended to commit fF the crime of criminal conspiracy. we The question posed by AIMS’s demurrer to Plaintiff's FAC is whether, under the legal | So ee precedent provided by AIMS, Plaintiffs Director’s Contract which provided that AIMS would — Fagen Friedman & Fulfrost, LLP Main 510-550-8200 © Fax 510-550-8211 “cover” legal fees in any action brought against Plaintiff “relating to the school” could be legally N 70 Washington Street, Suite 205 ee Oakland, California 94607 interpreted to apply to reimbursement for Plaintiffs legal costs related to his criminal conviction. Oe Plaintiff alleges that his legal fees must be reimbursed both under his interpretation of the “plain > language” of the Director’s Contract and must otherwise be reimbursed under Labor Code section NM 2802. Plaintiff goes so far as to imply that his criminal conviction was a victory that vindicated Nn actions he alleges were taken solely for the benefit of AIMS. lUlOlCOCSS In opposing AIMS’s demurrer, Plaintiff attempts to distract this Court from two simply legal principles cited by AIMS. First, a private indemnity or defense agreement, like the one in the Director’s Contract—interpreted strictly against the indemnitee in accordance with public policy— Oo -_~— must clearly and explicitly provide for indemnification and defense above and beyond third-party > civil actions. Here, in the absence of clear and explicit language to the contrary, the Director’s N Contract’s defense cost provision cannot apply to Plaintiff's criminal prosecution. Second, section Ww > 2802 precludes indemnity for actions which the employee knew were unlawful.at the time the a: > employee took those actions. Here, because Plaintiff admitted in federal court that he knowingly Nn > and intentionally conspired to commit an unlawful act, section 2802 does not apply. > nN ST While Plaintiff seeks to raise factual a about the intent and interpretation of the ~ LL Director’s Contract, the simple facts that, one, Plaintiff was convicted in criminal court after a plea Ce 2 Case No. RG-21099652 DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER TO AMENDED COMPLAINT , 8 6 of guilty to a specific intent crime and, two, the Director’s Contract does not clearly and explicitly = provide for payment of criminal defense costs, means that AIMS’s demurrer must be granted and YO Plaintiff's causes of action must be dismissed against AIMS with prejudice. OO Il. ARGUMENT FF A. Plaintiff Inappropriately Seeks to Narrow the Legal Holding of City of Bell A In his opposition, Plaintiff alleges that AIMS’s citation to City of Bell v. Superior Court, DB (2013) 220 Cal.App.4th 236, for its argument that the Director’s Contract cannot be interpreted to FH apply to criminal defense costs is “grossly misleading.” (Opp. at 5:9.) According to Plaintiff, City of Bell spoke only to the application of an employment contract to first-party indemnity (i.e., Ceo indemnity in actions between the contracting parties) and not to any analogous situation. (Opp. at lUlwehDelUCU Nl elUcUOlUlCCOClClUCOeWDWDmmUCUCUGNTClCOCANOU hU SEPlhlhUh Eh 7:8-10.) Plaintiff continues that the “unambiguously broad” language of the Director’s Contract Nec Fagen Friedman & Fulfrost, LLP © Fax 510-550-8211 applies to criminal prosecution as equally as to third-party civil actions and that the “course of 70 Washington Street, Suite 205 Oakland, California 94607 performance” of AIMS in paying for Plaintiff's defense costs for a time “reinforces the construction UF MLO urged by Plaintiff.” (Opp. at 8:3-9.) Ff Main 510-550-8200 While City of Bell did address, in part, first-party indemnity, Plaintiff appears to ignore that FEF the section cited by AIMS directly addresses the applicable contract interpretation that should be FF applied to claims of criminal defense obligations arising from an indemnity and defense clause. FF Specifically, the Court of Appeal in City of Bell explained that a noninsurance indemnity provision F&F (and, by extension, a noninsurance defense provision) must be “clear and explicit” to protect “beyond those [protections] afforded by the doctrines of implied or equitable indemnity.” (City of NV Bell, supra, 220 Cal.App.4th at p. 250.) These implied or equitable protections extend only to third- NK party civil claims, and an indemnification clause that does not explicitly provide otherwise cannot NK be construed to be more expansive. (Ibid., citing Queen Villas Homeowners Assn. v. TCB Property NY Management (2007) 149 Cal.App.4th 1, 6. ek NK Applying these principles to the employment agreement underlying the case, the Court of tN NK Appeal did not rely solely on the specific language in that agreement. In holding that the indemnity NY NO agreement at issue did not extend to criminal defense costs, the Court first observed that the daty to NYO defend is (absent language to the contrary) coextensive with the duty to indemnify. (City of Bell, co ny 3 Case No. RG-21099652 DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER TO AMENDED COMPLAINT = supra, 220 Cal.App.4th at p. 251.) The Court then observed that with regard to first-person claims, “In order for an indemnity agreement to encompass claims between the parties to the agreement . . . NY there must be clear and explicit language to that effect.” (Jd. at p. 252.) “We believe the same —] conclusion applies to the issue of whether a defense is owned for criminal actions.” (Jd. at p. 253.) FF Plaintiff spends considerable time arguing that the contract in City of Bell contained language A DNDN contrary to an interpretation that it applied to criminal defense costs. However, the Court’s application of indemnity principles was based, first and foremost, on the Jack of clear and explicit KH Pe language in the indemnity provision that applied either to first-party indemnification or criminal defense. (Id. at p. 252 [No such language is present in the agreement before us.”].) That the So indemnification agreement in that case also contained language inconsistent with the ex-employee’s lt CC interpretation simply reinforced the Court’s holding. (bid. [“Indeed, there is language indicating a FB lk Fagen Friedman & Fulfrost, LLP ¢ Fax 510-550-8211 contrary intent.”].) NYO 70 Washington Street, Suite 205 mmm Oakland, California 94607 In the instant case, it is not true that AIMS seeks to introduce parole evidence to defeat | Plaintiff’ s contract action at the pleading stage. Rather, if anything, Plaintiff seeks to obfuscate from FF Main 510-550-8200 the lack of clear and explicit language on the face of the Director’s Contract that would, under City Un om of Bell, be required for Plaintiff's interpretation of the agreement to prevail. Plaintiff insists that the WB om language of the Director’s Contract controls. AIMS seeks solely to apply contract interpretation mm TBH principles to demonstrate that, as a matter of law, Plaintiffs first cause of action must fail. mm CBO Finally, the implication that AIMS’s “course of performance” proves the veracity of CHO Plaintiff's interpretation is the sort of introduction of parole evidence Plaintiff otherwise argues has Co no place in interpreting the Director’s Contract. (Opp. at 8:6-7.) Regardless, even on its face, §=|§ NHN Plaintiff's proposed course of performance does not address the proper interpretation NY of the VN Director’s Contract for the simple fact that, as Plaintiff readily alleges in his FAC, his defense costs NR Oo were paid by AIMS’s insurance. When that insurance reached its limits, payment for Plaintiff's F&F» NY defense costs ceased. There are no allegations that AIMS’s insurance paid Plaintiff's criminal NY a defense costs because of:an employment contract to which the insurance carrier was not a party. It DB NY is rather much more straightforward and logical to conclude that insurance paid for Plaintiff's Ao NY defense costs because the insurance policy called for it to do so. Se Nv 4 Case No. RG-21099652 DEFENDANT AMERICAN INDIAN MODEL SCHOOLS’ NOTICE OF REPLY IN SUPPORT OF DEMURRER TO AMENDED COMPLAINT . | @ = “[PJublic policy concerns influence” how noninsurance indemnity, and by extension defense, agreements are construed. (City of Bell, supra, 220 Cal.App.4th at p. 250.) “As such, if a NY party seeks, in a noninsurance agreement, to be indemnified for protections beyond those afforded WO by the doctrines of implied or equitable indemnity . . . the language on the point must be particularly FF clear and explicit and will be construed strictly against the indemnitee.” (Jbid., citing Crawford v. aA Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 552.) Here, the Director’s Contract neither NDB explicitly nor clearly applies to criminal defense costs. For these reasons, construed strictly against fF Plaintiff, Plaintiffs first cause of action must be dismissed. B. Plaintiff's Plea of Guilty to a Specific Intent Crime Precludes Application of So Labor Code section 2802. hl = OOOBlhlUlUmCUCUCGNCCCANCOhOCUlUDlUlCUCOMDUCUCUNSLUlULDlCUCO Plaintiff's opposition claims that his cause of action under Labor Code section 2802 must ES Fagen Friedman & Fulfrost, LLP ¢ Fax 510-550-8211 survive demurrer by implying that section 2802 is absolute in an employer’s responsibility to Ff 70 Washington Street, Suite 205 Oakland, California 94607 indemnify its employees. This is, however, not true. While section 2802 requires indemnification of FF an employee for the direct consequences of the discharge of his or her duties “even if unlawful,” FF Main 510-550-8200 section 2802 explicitly excludes actions that an employee takes when that employee believes the FSF actions to be unlawful. Plaintiff was subject to a criminal prosecution that resulted in a conviction FF for the specific intent crime of conspiracy. That conviction, here by plea, is by its very nature a F judicial admission that Plaintiff engaged in actions he knew were unlawful. (Dowie v. Fleishman- FF Hillard Inc. (9th Cir. 2011) 422 Fed.Appx. 627, 629.) F- Plaintiff, conspicuously, cannot provide this Court with any authority that section 2802