Filed 4/18/23 Frank v. EVOLV Integrated Technologies Group CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAMES JOSEPH FRANK, B314796
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC722025)
v.
EVOLV INTEGRATED
TECHNOLOGIES GROUP, INC.
et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Amezcua-Moll & Associates and Rosemary Amezcua-Moll
for Plaintiff and Appellant.
Kull + Hall, Robert F. Kull and Kevin P. Hall for
Defendants and Respondents KBLED, Inc., All-In Energy
Group LLC and Kenneth Bruce Shaevel.
___________________
After EVOLV Integrated Technologies Group, Inc.
terminated his employment, James Joseph Frank sued, among
others, EVOLV; Kenneth Bruce Shaevel, EVOLV’s chief
executive officer; KBLED, Inc., a company owned in part by
Shaevel; and All-In Energy Group, LLC, an investor in EVOLV,
for wrongful termination, breach of contract, unlawful retaliation
and unfair business practices. The trial court sustained
demurrers and dismissed Frank’s causes of action for wrongful
termination and unfair business practices. The court then
granted the motion for summary judgment filed by Shaevel,
KBLED and All-In as to the remaining claims, ruling there was
no evidence to support the claims that Shaevel, KBLED and All-
In were liable to Frank under joint employer or alter ego theories.
We affirm the judgment entered in favor of Shaevel, KBLED and
All-In after the claims involving the remaining defendants were
resolved.
FACTUAL AND PROCEDURAL BACKGROUND
1. Formation of EVOLV
In May 2017 INESA International Corp., wholly owned by
Feilo International Trade Co., and KBLED entered a joint
venture agreement to form E-Street Technology, Inc., to market
and sell LED lighting products supplied by INESA. INESA
agreed to make an initial capital contribution of $700,000 for a
70 percent ownership interest and to provide a $1.5 million line of
credit to E-Street. KBLED agreed to make an initial capital
contribution of $100,000, followed by a $200,000 contribution by
December 31, 2019, for 30 percent of E-Street. The agreement
provided that INESA would appoint three board members,
KBLED would appoint two board members, and Shaevel would
serve as chief executive officer. Shaevel, as president of KBLED,
2
signed the joint venture agreement, as did Qi Li, chief executive
officer of INESA. The parties renamed the newly formed
company EVOLV.
Separately, in lieu of KBLED investing in EVOLV and to
shield KBLED from the risks of a minority ownership interest in
a start-up company, Shaevel, Bruce Merino (the majority
shareholder of KBLED) and Jamie Shaevel (Shaevel’s son)
formed All-In to hold the stock in EVOLV and to make KBLED’s
required investment in the new company. Shaevel owned
40 percent of All-In and was its president.
In June 2017 INESA and All-In entered into a
shareholders’ agreement for EVOLV. The shareholders’
agreement provided it superseded any conflicting terms in the
joint venture agreement. The shareholders’ agreement defined
“Corporation” as EVOLV, its successors, any surviving or
resulting entities following a merger or a consolidation and “any
entity controlled by or under common control with the
Corporation.” “Shareholder” was defined as the parties to the
agreement and any “permitted transferee” who acquired shares
subject to the provisions of the agreement. Li, as president of
INESA, and Shaevel, as president of All-In, signed the
shareholders’ agreement.
Shaevel and Merino, appointed by All-In, and Li and two
others appointed by INESA were named directors of EVOLV.
INESA made its full initial contribution to EVOLV. Rather
than a $100,000 contribution from All-In, Shaevel and Jamie
Shaevel each contributed $50,000 from their personal bank
accounts directly to EVOLV. Shaevel explained they made those
payments because “[a]s a partner of All-In, we agreed to fund
EVOLV.” Shaevel and/or KBLED also paid for some marketing
3
expenses for EVOLV. All-In never provided any funding to
EVOLV.
2. Frank’s Employment with EVOLV
Frank and EVOLV entered a written employment
agreement, and Frank began working as EVOLV’s sales director
for national accounts beginning July 1, 2017. The agreement
defined “Company” as “EVOLV Integrated Technologies Group
Inc.” Shaevel signed the agreement on behalf of EVOLV as its
president and chief executive officer. The agreement outlined
Frank’s duties, which included providing reports to the president
or the board about sales activities and results and entering
contracts with customers for LED lighting products. Section 9
detailed the bases for termination of Frank’s employment, which
included the failure to meet sales projections and gross
negligence or willful misconduct resulting in material harm to
EVOLV. The agreement provided Frank with 30 days to cure
any failure to meet sales projections or to perform the obligations
of his job.
On January 4, 2018, approximately six months after Frank
began working at EVOLV, Shaevel emailed Frank requesting a
meeting to discuss a lack of sales and issues relating to the cost of
sales and Frank’s expense reports. On January 17, 2018 Frank
was suspended based on concerns that he was not acting in the
best interest of the company. Five days later EVOLV’s board of
directors terminated Frank’s employment. According to the
termination letter, signed by Shaevel, Frank “inappropriately
and secretly acted to get the President and CEO (me) terminated
and to form another company” to handle sales; failed to submit
“truthful and reasonable expense reports”; failed to make sales
and lacked accountability for his daily activities; conspired with
4
other employees “to misappropriate and disseminate confidential
information about another company in which I am an owner”;
and made defamatory comments about company personnel.
3. Frank’s Lawsuit and Operative Complaint
Frank filed his original complaint on September 18, 2018,
naming as defendants EVOLV, Shaevel, KBLED, All-In, INESA
and Feilo, and alleging causes of action for wrongful termination,
breach of written contract, retaliation in violation of Labor Code
section 1102.5 and unfair business practices in violation of
Business & Professions Code section 17200 et seq. Frank’s
wrongful termination and unfair business practices causes of
action were dismissed after the trial court sustained the
defendants’ demurrers. Following several amendments, Frank
filed a fourth amended complaint in March 2021 alleging causes
of action against the defendants for breach of written contract
and retaliation in violation of Labor Code section 1102.5.
As alleged in the operative pleading, Frank and EVOLV
entered into a written agreement for employment on July 1,
2017, which EVOLV breached on January 22, 2018 by
terminating him without cause. Frank further alleged the
defendants retaliated against him because he and a coworker,
Sam Bernal, “complained of harassment by Shaevel” and “also
complained of what they believed to be embezzlement (violation
of Penal Code 503).” For both causes of action, Frank summarily
alleged that “each and every Defendant acted in concert with
each other, [and] was the joint employer of Plaintiff and the alter
ego of each other.”
5
4. The Motion for Summary Judgment
Shaevel, KBLED and All-In moved for summary judgment
1
in December 2020. They argued the undisputed evidence
established they were neither joint employers of Frank nor alter
egos of EVOLV. Accordingly, they argued, they could not be
liable for any breaches of the employment contract or any
retaliation against Frank. They further argued, if a triable issue
of material fact existed as to joint employer or alter ego status,
there was no dispute that EVOLV terminated Frank with cause
pursuant to the employment agreement and no evidence of
Shaevel’s embezzlement from EVOLV to support Frank’s
retaliation claim.
2
Frank opposed the motion, contending Shaevel was his
employer because he exercised control over Frank’s wages and
working conditions. Frank suggested KBLED and All-In should
also be considered his employer because Shaevel was acting on
their behalf. Frank argued disputed material facts existed
whether his employment agreement had been breached because
he was not given 30 days to cure any issues with his performance
and whether the reasons for firing him were pretextual. In his
1
Shaevel, KBLED and All-In directed their motion at the
then-operative third amended complaint. While the motion was
pending, the parties stipulated to the filing of Frank’s fourth
amended complaint. Shaevel, KBLED and All-In then filed a
notice correcting the title of their motion to direct it to the fourth
amended complaint.
2
Frank filed an opposition memorandum with evidence and
two supplemental oppositions after further discovery, including
taking Shaevel’s deposition as KBLED’s person most
knowledgeable.
6
declaration in opposition to the motion, Frank stated that
Shaevel decided to terminate him because “he was angry that
Sam Bernal and I both raised issues about him and what we
perceived was embezzlement,” including “concerns of
inappropriate use of Evolv personnel and resources by Shaevel.”
Regarding his alter ego allegations, Frank conceded
Shaevel was not the alter ego of EVOLV because Shaevel was not
a shareholder of EVOLV, but he contended EVOLV was the alter
ego of Shaevel. In support of this claim, Frank argued EVOLV
was undercapitalized because only $450,000 of the intended
initial $1 million capital contribution had been funded and
EVOLV’s operating costs exceeded that limited capitalization;
Shaevel and Jamie Shaevel had personally funded EVOLV,
rather than KBLED, in contravention of the joint venture
agreement; All-In was set up so KBLED could “avoid risk”; and
EVOLV was dissolved in January 2019 even though all its
liabilities had not been paid.
In his opposition separate statement Frank disputed the
evidence presented with the moving papers to establish that
KBLED and All-In were not the alter egos of EVOLV, that
Shaevel, KBLED and All-In were not joint employers of Frank
and that Frank was terminated for good cause.
5. The Trial Court’s Ruling
The trial court held a hearing on June 21, 2021 and issued
its decision granting the motion for summary judgment on
3
June 23, 2021. The court ruled Frank failed to present any
evidence to support imposition of liability for breach of contract
3
No court reporter was present at the hearing.
7
or violation of Labor Code section 1102.5 against Shaevel,
KBLED or All-In.
The court explained that Shaevel (in his individual
capacity), KBLED and All-In did not sign the employment
contract and Frank presented no evidence demonstrating they
were signatories to the contract or otherwise liable as
nonsignatories based on joint employer or alter ego theories. The
court acknowledged that Shaevel played a role in hiring and
firing Frank and communicating with Frank about his expense
reports, but the court determined the undisputed evidence
demonstrated Shaevel was acting on behalf of EVOLV as its
president, chief executive officer and board member rather than
as a joint employer. As to KBLED and All-In, Frank’s lone
theory was that Shaevel had been acting on behalf of those two
companies when dealing with Frank; but, because Shaevel’s
actions were as a corporate officer of EVOLV and not as a joint
employer, Shaevel’s other relationships with KBLED and All-In
did not create liability for those entities. Regarding alter ego
liability, the only evidence submitted by Frank that Shaevel,
KBLED and All-In were alter egos of EVOLV was EVOLV’s
purported undercapitalization. The court found this evidence
was insufficient to pierce the corporate veil because it was
undisputed that EVOLV had received $800,000 (not $450,000 as
Frank contended) in initial funding and the remaining $200,000
was not due until December 31, 2019, by which time EVOLV had
already been dissolved.
6. Trial of INESA, Judgment and Notice of Appeal
INESA failed to appear and was tried in absentia. The
court found in favor of Frank for breach of contract and violation
of Labor Code section 1102.5 and awarded him $375,286.67 in
8
special damages, $220,000 in emotional distress damages and
$180,633.32 in attorney fees and costs. The court dismissed
EVOLV and Feilo without prejudice and entered judgment in
favor of Frank against INESA and “[i]n favor, jointly and
severally” of KBLED, All-In and Shaevel and ordered Frank to
pay them $251,250 in attorney fees and $5,798.07 in costs.
4
Frank filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) We review a grant of summary judgment de novo
(Samara v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the
evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in favor of that party (Weiss v.
People ex rel. Department of Transportation (2020) 9 Cal.5th 840,
864; Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618), decide independently whether the facts not
subject to triable dispute warrant judgment for the moving party
as a matter of law. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th
610, 618.)
4
Frank filed his notice of appeal on August 20, 2021, several
weeks before the trial court entered judgment on September 10,
2021. We exercise our discretion to treat Frank’s premature
notice of appeal as timely filed immediately after entry of
judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
9
When a defendant moves for summary judgment in a
situation in which the plaintiff would have the burden of proof at
trial by a preponderance of the evidence, the defendant may, but
need not, present evidence that conclusively negates an element
of the plaintiff's cause of action. Alternatively, the defendant
may present evidence to “‘show[] that one or more elements of the
cause of action . . . cannot be established’ by the plaintiff.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853
(Aguilar); accord, Regents of University of California v. Superior
Court, supra, 4 Cal.5th at p. 618 [“[a] defendant seeking
summary judgment must show that the plaintiff cannot establish
at least one element of the cause of action”]; Code Civ. Proc.,
§ 437c, subd. (p)(2).) “The moving party bears the burden of
showing the court that the plaintiff has not established, and
cannot reasonably expect to establish, the elements of his or her
cause of action.” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705,
internal quotation marks omitted; accord, Wilson v. 21st Century
Ins. Co. (2007) 42 Cal.4th 713, 720; see Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990, 1002-1003 [“the
defendant must present evidence that would preclude a
reasonable trier of fact from finding that it was more likely than
not that the material fact was true [citation], or the defendant
must establish that an element of the claim cannot be
established, by presenting evidence that the plaintiff ‘does not
possess and cannot reasonably obtain, needed evidence’”].)
Once the defendant’s initial burden has been carried, the
burden shifts to the plaintiff to demonstrate, by reference to
specific facts, not just allegations in the pleadings, there is a
triable issue of material fact as to the cause of action. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.)
10
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof” at trial.
(Aguilar, at p. 850; accord, Lugtu v. California Highway Patrol
(2001) 26 Cal.4th 703, 722.)
2. Governing Law
Frank’s appeal challenges only the trial court’s order
granting summary judgment in favor of Shaevel, KBLED and
All-In on his causes of action for breach of contract and unlawful
retaliation. In the trial court Frank did not dispute that the
employment agreement “was entered into . . . by and between
plaintiff and defendant [EVOLV], as the sole identified employer”
or that “[t]he Agreement was an integrated contract.” His
arguments on appeal center on Shaevel’s, KBLED’s and All-In’s
potential liability as joint employers with EVOLV or under
theories of alter ego. Neither position has merit.
a. Joint employers
“Joint employment occurs when two or more persons
engage the services of an employee in an enterprise in which the
employee is subject to the control of both.” (Morales v. 22nd
District Agricultural Association (2018) 25 Cal.App.5th 85, 94,
fn. 14, internal quotation marks omitted.) To be a joint employer
an entity must have had the ability “(a) to exercise control over
. . . wages, hours or working conditions, [or] (b) to suffer or permit
[the] work, or (c) to engage, thereby creating a common law
employment relationship.” (Martinez v. Combs (2010) 49 Cal.4th
35, 64.)
“‘There is no magic formula for determining whether an
organization is a joint employer. Rather, the court must analyze
11
myriad facts surrounding the employment relationship in
question. No one factor is decisive.” (St. Myers v. Dignity
Health (2019) 44 Cal.App.5th 301, 311, cleaned up.) “Factors to
be taken into account in assessing the relationship of the parties
include payment of salary or other employment benefits and
Social Security taxes, the ownership of the equipment necessary
to performance of the job, the location where the work is
performed, the obligation of the defendant to train the employee,
the authority of the defendant to hire, transfer, promote,
discipline or discharge the employee, the authority to establish
work schedules and assignments, the defendant’s discretion to
determine the amount of compensation earned by the employee,
the skill required of the work performed and the extent to which
it is done under the direction of a supervisor, whether the work is
part of the defendant’s regular business operations, the skill
required in the particular occupation, the duration of the
relationship of the parties, and the duration of the plaintiff’s
employment.’ . . . The most important factor is ‘“the defendant’s
right to control the means and manner of the workers’
performance.”’” (Id. at pp. 311-312.)
b. Alter ego
“Alter ego is essentially a theory of vicarious liability under
which the owners of a corporation may be held liable for harm for
which the corporation is responsible where, because of the
corporation’s utilization of the corporate form, the party harmed
will not be adequately compensated for its damages.” (Doney v.
TRW, Inc. (1995) 33 Cal.App.4th 245, 249.) “‘Ordinarily, a
corporation is regarded as a legal entity, separate and distinct
from its stockholders, officers and directors, with separate and
distinct liabilities and obligations. [Citations.]’ [Citation.] ‘[T]he
12
corporate form will be disregarded only in narrowly defined
circumstances and only when the ends of justice so require.’
[Citation.] Before a corporation’s obligations can be recognized as
those of a particular person, the requisite unity of interest and
inequitable result must be shown. [Citation.] These factors
comprise the elements that must be present for liability as an
alter ego.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 411;
see Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305,
1341 [“‘when the corporate form is used to perpetuate a fraud,
circumvent a statute, or accomplish some other wrongful or
inequitable purpose, the courts will ignore the corporate entity
and deem the corporation’s acts to be those of the persons or
organizations actually controlling the corporation, in most
instances the equitable owners’”].)
On occasion, courts have recognized “reverse veil piercing,”
a situation in which an outside creditor seeks “to satisfy the debt
of an individual through the assets of an entity of which the
individual is an insider.” (Curci Investments, LLC v. Baldwin
(2017) 14 Cal.App.5th 214, 221 [limited liability company may be
added as a judgment debtor where the liable defendant was the
sole shareholder of the limited liability company and where the
interest of justice required disregarding the limited liability
company as a separate legal entity]; Postal Instant Press, Inc. v.
Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1513 [“[s]ome courts
have recognized a variant of the alter ego doctrine, called third
party or ‘outside’ reverse piercing of the corporate veil, by which
the corporate veil is pierced to permit a third party creditor to
reach corporate assets to satisfy claims against an individual
shareholder”].) However, in cases involving a corporation, as
opposed to a limited liability company, “a third party creditor
13
may not pierce the corporate veil to reach corporate assets to
satisfy a shareholder’s personal liability.” (Postal Instant Press,
at pp. 1512-1513.)
3. Summary Judgment Was Properly Granted in Favor of
Shaevel
As discussed, Frank conceded in the trial court—and does
again on appeal—that Shaevel was not the alter ego of EVOLV.
However, as he did in the trial court, on appeal Frank argues
there are disputed issues of material fact that could justify
application of reverse veil piercing to find EVOLV is the alter ego
of Shaevel, which would make EVOLV vicariously liable for
Shaevel’s actions against Frank.
In support of this argument Frank notes only that Shaevel
and his son wrote checks directly to EVOLV for its initial
capitalization and the two Shaevels and Merino were the owners
of All-In. Frank fails to cite, let alone discuss, any authority that
would suggest reverse veil piercing is appropriate based on those
minimal facts. (See Badie v. Bank of America (1998)
67 Cal.App.4th 779, 784-785 [“[w]hen an appellant fails to raise a
point, or asserts it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived”]; see also
In re A.C. (2017) 13 Cal.App.5th 661, 672.)
Even if not forfeited, the argument lacks merit. Reverse
veil piercing does not apply here because EVOLV was
incorporated and owned by All-In and INESA; Shaevel was not a
shareholder of EVOLV. (See Postal Instant Press, Inc., supra,
162 Cal.App.4th at pp. 1512-1513.) More fundamentally,
whether EVOLV could be liable for actions taken by Shaevel—
that is, EVOLV’s potential status as Shaevel’s alter ego—is
immaterial and thus not a basis on which summary judgment
14
could be denied. (See Romero v. American President Lines, Ltd.
(1995) 38 Cal.App.4th 1199, 1203 [“‘[t]he presence of a factual
dispute will not defeat a motion for summary judgment unless
the fact in dispute is a material one’”]; Cal. Rules of Court,
rule 3.1350(a)(2) [“‘[m]aterial facts’ are facts that relate to the
cause of action . . . that is the subject of the motion and that could
make a difference in the disposition of the motion”].) EVOLV was
indisputably Frank’s employer. If any entity or person was liable
for breach of contract or unlawful retaliation it was EVOLV. To
defeat Shaevel’s motion, Frank needed to present evidence that
Shaevel was liable for EVOLV’s purported misconduct, not vice
versa. As the trial court found, Frank failed to do that: Although
Frank argued in his reply brief in this court that triable issues of
fact exist on the underlying issues of liability, he has presented
no argument on appeal that Shaevel (or KBLED or All-In, for
that matter) is directly liable for breaching the employment
agreement or for retaliating against him. Disputed issues about
EVOLV’s direct liability do not affect the trial court’s decision to
grant Shaevel’s motion.
Frank’s conclusory argument that disputed issues of
material fact existed as to Shaevel’s status as his joint employer
is equally without merit. Frank contends, without elaboration,
that, because there is substantial evidence of alter ego, “it stands
to reason a trier of fact can reasonably conclude that Respondents
[Shaevel, KBLED and All-In] are the joint employers of
Appellant.” That naked assertion is doubly flawed.
First, as discussed, it was conceded that Shaevel was not
the alter ego of EVOLV, Frank’s employer; and there was no
evidence that reverse veil piercing can be applied to find EVOLV
was Shaevel’s alter ego, even if that had any bearing on Shaevel’s
15
status as a joint employer. Second, the tests for alter ego liability
and joint employer status are entirely different. Assuming A is
the employee of company B, whether company C is A’s joint
employer depends on C’s relationship to A (primarily C’s right to
control A’s work performance), not, as in an alter ego evaluation,
C’s relationship to B (primarily whether there is a unity of
interest between B and C). Whether there is substantial
evidence of alter ego tells us nothing about the sufficiency of the
evidence for a joint employer finding. And Frank fails to point us
to any evidence in the record that creates a triable issue of
material fact on that issue. (See generally Meridian Financial
Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [“[t]he
reviewing court is not required to develop the parties’ arguments
or search the record for supporting evidence and may instead
treat arguments that are not developed or supported by adequate
citations to the record as waived”]; ComputerXpress, Inc. v.
Jackson (2001) 93 Cal.App.4th 993, 1011 [“[i]t is not the duty of a
reviewing court to search the record for evidence on a point raised
by a party whose brief makes no reference to the pages where the
evidence can be found”].)
4. Frank’s Joint Employer Argument Fails as to KBLED
and All-In
Frank advances as to KBLED’s and All-In’s liability as
joint employers the identical, minimalist it-stands-to-reason
argument made with respect to Shaevel. It fails for the same
reason: Evidence of alter ego liability, even if it existed, is not
evidence of joint employer status.
16
5. Frank Has Forfeited His Undeveloped and Conclusory
Arguments Concerning Alter Ego Liability as to KBLED
and All-In
Arguing under the more conventional alter ego theory that
KBLED and All-In were the alter egos of EVOLV and, therefore,
liable for EVOLV’s breach of contract and retaliatory actions,
Frank lists 22 “material facts” that he asserts “could lead the
trier of fact to find alter ego liability.” But he fails to explain how
those facts are material—that is, how they would support a
finding that KBLED or All-In controlled EVOLV or were
sufficiently interconnected to it to warrant disregarding EVOLV’s
corporate form. Again, it is not our task to create Frank’s
argument for him. (See Meridian Financial Services, Inc. v.
Phan, supra, 67 Cal.App.5th at p. 684.) Further, in support of
these 22 material facts in this court, Frank cited 37 pages from
Shaevel’s deposition as KBLED’s person most knowledgeable.
Yet Frank did not present that evidence in opposition to the
motion for summary judgment; he filed it to support a motion for
leave to file a fifth amended complaint (a motion filed after the
trial court issued its summary judgment ruling). Because Frank
failed to identify this evidence in the trial court on summary
judgment, we will not consider it on appeal. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [“[b]ecause this
case comes before us after the trial court granted a motion for
summary judgment, we take the facts from the record that was
before the trial court when it ruled on that motion”]; Loggins v.
Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109;
see also Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 608
[appellate court reviews propriety of ruling on summary
judgment “based on the record before the trial court on summary
judgment”].)
17
Frank now also contends that EVOLV, KBLED and All-In
are effectively the same company, relying on the definition of
“Corporation” found in EVOLV’s shareholders’ agreement. Based
on this definition, Frank urges us to conclude EVOLV, KBLED
and All-In were employers of Frank and alter egos of one
another—a theory, when properly developed, generally referred
5
to as the single-enterprise rule. Frank did not make this
argument in the trial court, and it is forfeited. (See Meridian
Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 704
[arguments deemed forfeited where plaintiffs’ “opposition
separate statement does not set forth all of the facts on which
they base their current argument” on appeal]; DiCola v. White
Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666,
676 [“‘possible theories that were not fully developed or factually
presented to the trial court cannot create a “triable issue” on
appeal’”]; Saville v. Sierra College (2005) 133 Cal.App.4th 857,
872-873 [issue not asserted in opposing motion for summary
judgment forfeited; were doctrine not applied, losing parties
“could attempt to embed grounds for reversal on appeal into
6
every case by their silence”].)
5
Under the single-enterprise rule a “sister or affiliated”
company can be held liable under the alter ego doctrine when a
court finds that, as a matter of equity, the organization has been
operating as a single enterprise, considering the relevant factors.
(See, e.g., Troyk v. Farmers Group, Inc., supra, 171 Cal.App.4th
at p. 1341.)
6
Even were we to consider the merits of this argument for
the first time on appeal, Frank fails to explain why a defined
term plucked from EVOLV’s shareholders’ agreement applies in
the context of his employment-related claims or why the
18
For the same reason Frank has forfeited the additional
arguments regarding alter ego he raises for the first time on
appeal: KBLED and All-In are alter egos of Shaevel, and All-In
is an alter ego of KBLED. In any event, as discussed, possible
alter ego relationships between or among Shaevel, KBLED and
All-In were immaterial absent evidence that one of those parties
was an alter ego of EVOLV.
DISPOSITION
The judgment is affirmed. Shaevel, KBLED and All-In are
to recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
definition of “Company” in Frank’s employment contract as
simply “EVOLV Integrated Technologies Group Inc.” does not
control.
19