Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YC052777 Rolf Michael Treu, Judge.
Peters & Peters and Barbara J. Peters for Plaintiffs and Appellants.
Jones Day, Craig E. Stewart and Tracy M. Strong; Filice Brown Eassa & McLeod, Susan A. Odgie and Daniel J. Nichols; Prindle, Decker & Amaro, Andy J. Goetz, Grace C. Mori and Carla L. Crochet for Defendant and Respondent.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
James E. Bonnifield (Bonnifield) died of asbestos related cancer after working for many years in an oil field operated by a subsidiary of Texaco, Inc. (Texaco). His children and his estate (collectively, the estate) brought this wrongful death action in 2006 against Chevron Corporation (Chevron) and others, alleging that Chevron had merged with Texaco and was therefore its successor in interest. Chevron moved for summary judgment on the ground that it was not liable for any damages caused by Texaco, because Texaco was an independent subsidiary of Chevron. The estate contends that it has raised a triable issue of fact as to whether there was a merger or consolidation of the two companies, causing Chevron to undertake Texaco’s liabilities. The estate also contends that it raised triable issues relating to quasi-estoppel, de facto merger, alter ego, and implied assumption by Chevron of Texaco’s liabilities. We reject the estate’s contentions and affirm the judgment.
The other defendants were individual owners of the oil fields, who leased the oil rights to the oil companies. They also brought a motion for summary judgment, which was granted. Appellants do not appeal from that ruling.
BACKGROUND
1. The Pleadings and Motions
The first amended complaint alleges that in 1995 and for a number of years before that time, Bonnifield had been employed by Texaco Exploration & Production, Inc. (TEPI), to service oil wells in the San Ardo Oil Lombardi Fields. It further alleges that he was diagnosed in 2005 with asbestos related lung cancer, due to his exposure to asbestos at the oil fields, and that he died as a result in 2006. It is alleged that TEPI was a subsidiary of Texaco, which exercised management and control over its subsidiaries with respect to safety programs, management services, and policy, among other things.
Chevron is named as the successor in interest to Texaco by merger. It is alleged that, at first, the name of the merged company was Chevron Texaco Corporation, but that it was later changed to Chevron Corporation. The first amended complaint alleges that TEPI became a subsidiary of Chevron U.S.A., Inc., another subsidiary of Chevron Corporation. It is further alleged that Texaco exercised management and control over TEPI with respect to safety programs, and that Chevron and Chevron Texaco exercised control over its subsidiaries’ health, safety, and environmental policies, thereby assuming a duty to provide a safe working environment. The first amended complaint alleges that the company breached this duty by failing to require its subsidiary corporations to identify and remove asbestos.
Chevron filed an answer denying the allegations of the first amended complaint, and brought a motion to compel joinder of Texaco as a party defendant. After the motion was denied, Chevron brought a motion for summary judgment, or, in the alternative, for summary adjudication of claims or causes of action, on the ground that no triable issue of fact existed, because Texaco remained an independent subsidiary with sufficient assets to meet any judgment in the case.
2. The Facts
It was undisputed that Bonnifield worked at the San Ardo Lombardi Oil Field from 1960 or 1961 to 2002, when he retired, and that during that time, he was employed by Texaco and TEPI. Chevron and Texaco were both incorporated in 1926. In October 2000, Chevron, Texaco, and Keepep, Inc. (Keepep), entered into an “Agreement and Plan of Merger” (Agreement). The Agreement was filed with the Securities and Exchange Commission (SEC) as a public record, and has been available for Internet viewing since 2005. The Agreement was certified on or after its effective date by an official with custody of it.
Corporations Code section 1106 provides that a copy of a merger agreement so certified “has the same force in evidence as the original and, except as against the state, is conclusive evidence of the performance of all conditions precedent to the merger, the existence on the effective date of the surviving corporation and the performance of the conditions necessary to the adoption of any amendment to the articles contained in the agreement of merger.”
Chevron produced evidence that it did not merge with Texaco, and that Texaco remained a separate entity -- a viable corporation with sufficient assets to satisfy a judgment. Chevron submitted the declaration of Frank Soler, a Chevron employee since 1985, director and officer of Texaco since 2004, and custodian of corporate records. Soler stated that he participated in the restructuring of Texaco’s assets and subsidiaries following its merger with Keepep in October 2001, that he was knowledgeable about the assets and operations of Texaco and its subsidiaries, and that he had been personally involved in the implementation of the Agreement, under which Chevron acquired all of Texaco’s stock in exchange for Chevron stock. He explained that Chevron did not purchase Texaco’s assets, which consisted primarily of its subsidiaries, including TEPI, and that Texaco continued to hold assets worth more than $10 billion. Although TEPI changed its name to Chevron U.S.A. Holdings, Inc., in 2005, it remained a wholly owned subsidiary of Texaco.
Chevron also sought to show that the estate would be unable to establish liability based upon Chevron’s own negligence. The court found that Chevron had produced sufficient evidence to justify summary judgment on this issue, and that the estate had not raised a triable issue of fact. As the estate does not assign this part of the court’s ruling as error, we do not discuss it.
Soler stated that pursuant to the Agreement, Texaco merged with Keepep, Chevron’s wholly owned subsidiary created for that purpose, in a transaction commonly referred to as a “reverse triangular merger.” By merging with Keepep, Texaco became a wholly owned subsidiary of Chevron. As provided in the Agreement, Chevron changed its name to ChevronTexaco Corporation, but changed it back to Chevron Corporation in 2005. Soler stated that Texaco acquired the majority of Chevron’s assets in the 2001 merger and retained the assets it had owned prior to its merger with Keepep. He stated that since then Texaco has remained a distinct corporation and wholly owned subsidiary of Chevron, with assets worth more than $10 billion.
Soler attached copies of the Agreement and various certificates issued in January 2007 by the Delaware Secretary of State, showing the history of Chevron, Texaco, and Keepep, all Delaware corporations. Also included were Texaco’s certificate of foreign corporate status since 1941, issued by the California Secretary of State in January 2007, and TEPI’s amended certificates of incorporation, showing its name change in 2005 from Texaco Exploration and Production, Inc., to Chevron U.S.A. Holdings, Inc.
The certificates show that since Chevron’s incorporation in 1926, it continued to be a corporation in good standing, that it changed its name to ChevronTexaco Corporation in 2001 and back to Chevron Corporation in 2005, and that it filed restated certificates of incorporation in those years. Other certificates show that since Texaco incorporated in 1926, it remained a corporation in good standing, and that Texaco and Keepep merged in October 2001, leaving Texaco as the surviving corporation.
In its opposition to the motion, the estate submitted the declarations of its executor and its attorney, authenticating documents intended to show that the transaction between Chevron and Texaco resulted in a merger of the two corporations. The relevant exhibits considered by the court included copies of ChevronTexaco’s 2002 annual report, a ChevronTexaco retirement benefits brochure and envelope addressed to Bonnifield, a letter from ChevronTexaco to Wells Fargo Bank dated August 22, 2003, and a February 2001 press release issued by Chevron. Also considered were photographs depicting signs at the San Ardo field. One stated “ChevronTexaco” in large boldface at the top, and “San Ardo Field” and the address at the bottom. Two others contained other location information, with “ChevronTexaco” in large boldface at the top.
The court sustained objections to the declarants’ opinions regarding the effect and purpose of the documents. The court excluded exhibits 1, 3, 6, 12, 13, and 17, consisting of copies of an article in a periodical, a portion of ChevronTexaco’s 2001 annual report, a letter purporting to be from TEPI, a paper prepared for a 2005 conference, a medical recommendation for Bonnifield in 2001, and medical records. The estate does not challenge the court’s evidentiary rulings.
ChevronTexaco’s 2002 annual report discussed “the merger transaction,” in which “Texaco, Inc.... became a wholly owned subsidiary of Chevron Corporation... [which] changed its name to ChevronTexaco Corporation.” The 2002 report continued: “Certain operations that were jointly owned by the combining companies are consolidated in the accompanying financial statements.... These operations are primarily those of the Caltex Group of Companies, which was previously owned 50 percent each by Chevron and Texaco. The combination was accounted for as a pooling of interests, and the accompanying audited consolidated financial statements for all periods are presented as if Chevron and Texaco had always been combined.”
The Chevron Texaco retirement benefits brochure appears to explain medical insurance provided to qualified former employees of ChevronTexaco and “Predecessor Companies.” The document includes an explanation of benefits for former employees of Texaco and other subsidiaries, suggesting that a single health plan covered the employees of the several companies.
The letter from ChevronTexaco to Wells Fargo Bank states, among other things, that ChevronTexaco was “considering a major upgrading and expansion of... facilities to restore the San Ardo field to historical production levels....” In what appears to be preprinted letterhead, the name “Chevron U.S.A., Inc.,” an address, and a telephone number appear in small print at the top left-hand corner of the first page. To the right of Chevron U.S.A., the sender’s name and title, Roger Buelow, Staff Land Representative, also appear in small print. Large, boldface letters spell “ChevronTexaco” near the top right hand corner of each page.
The headline of the 2001 press release states, “Chevron and Texaco Announce Leadership Team and Organization Structure for Proposed Post-Merger Company,” and a subheading states, “More ChevronTexaco Merger Information.” The press release refers several times to “the merger,” “our merger,” and “the new company.”
3. Judgment and Appeal
The trial court granted Chevron’s motion. It found that Chevron had produced sufficient evidence to show that Texaco was at all times an independent company with sufficient assets from which the estate would be able to satisfy a judgment. The court found that no admissible evidence had been produced showing that Chevron and Texaco had merged or consolidated, that Chevron had acquired Texaco’s assets or liabilities, or that Chevron controlled TEPI, Bonnifield’s employer. Judgment was entered in Chevron’s favor January 2, 2008, and the estate filed a timely notice of appeal February 27, 2008.
DISCUSSION
1. Standard of Review
We independently review the trial court’s decision to grant a motion for summary judgment, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
We first determine whether Chevron, as the moving defendant, made a prima facie showing of the nonexistence of any triable issue of material fact, by producing evidence to show either that one or more elements of the plaintiff’s cause of action could not be established, or that there was a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If we find that Chevron’s burden has been met, we then determine whether the estate has met its burden to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co.,at p. 850.)
In this case, some of the issues relate to the construction of the Agreement and other written instruments produced by the parties. Where there is no extrinsic evidence or no conflict in the evidence regarding the interpretation of the writings, we construe them by exercising our independent judgment under generally accepted canons of interpretation. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
2. Chevron’s Prima Facie Showing
It was undisputed that Bonnifield’s employer was TEPI and that TEPI was a subsidiary of Texaco. “It is a general principle of corporate law deeply ‘ingrained in our economic and legal systems’ that a parent corporation (so-called because of control through ownership of another corporation’s stock) is not liable for the acts of its subsidiaries. [Citations.]” (United States v. Bestfoods (1998) 524 U.S. 51, 61-62.) A corporation may assume the debts and liabilities of another corporation, if it acquires the second corporation’s assets and comes within one or more of four exceptions to the rule of nonliability. (Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28.) One such exception arises when the transaction amounts to a consolidation or merger of the two corporations. (Ibid.)
The estate was pursuing a worker’s compensation claim against TEPI. An injured employee may bring an action in court against a corporate employer’s parent company only if the parent has assumed a duty to the employee by affirmatively undertaking to provide a safe workplace. (Waste Management Inc. v. Superior Court (2004) 119 Cal.App.4th 105, 109-110.) The first amended complaint alleges such a duty on the part of Texaco, and Chevron’s motion did not address the allegation.
The other exceptions to the rule of the nonliability are applicable when “there is an express or implied agreement of assumption [of liabilities],... the purchasing corporation is a mere continuation of the seller, or... the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller’s debts. [Citation.]” (Ray v. Alad Corp., supra, 19 Cal.3d at p. 28; see also Fisher v. Allis-Chalmers Corp. Product Liability Trust (2002) 95 Cal.App.4th 1182, 1188.)
Chevron established with Soler’s declaration that Chevron did not acquire the assets of Texaco. Soler stated that in the merger of Keepep with Texaco, Chevron purchased only Texaco’s stock, not assets, with the result that Texaco became Chevron’s wholly owned subsidiary with assets worth more than $10 billion. The purpose of the nonliability exceptions is to prevent one corporation from taking all of another’s assets without providing any consideration that could be made available to meet the other’s liabilities. (Ray v. Alad Corp., supra, 19 Cal.3d at p. 28.) Thus, as Chevron made a prima facie showing that it did not acquire Texaco’s assets, which remained available to answer for any damages recovered by the estate, it was not required to produce evidence of an exception. (See Potlatch Corp. v. Superior Court (1984) 154 Cal.App.3d 1144, 1150-1151.)
However, Chevron addressed the merger exception, directing its motion to the allegation in the first amended complaint that Chevron was the successor in interest to Texaco due to merger or consolidation with Texaco. “[A] merger is the absorption of one corporation by another which survives; retains its name and corporate identity together with the added capital, franchises, and powers of the merged corporation; and continues the combined business. [Citation.] The merged corporation ceases to exist, and the merging corporation alone survives. [Citation.]” (Phillips v. Cooper Laboratories (1989) 215 Cal.App.3d 1648, 1659.) There is no merger where one corporation buys only the stock, not the assets of the other, and where both companies continue to exist as separate corporations. (Ibid.)
The distinction between merger and consolidation has been eliminated in California. (See Marks v. Minnesota Mining & Manufacturing Co. (1986) 187 Cal.App.3d 1429, 1434, fn. 10 (Marks).) However, under the “internal affairs doctrine,” corporate acts such as the original incorporation, mergers, consolidations, reorganizations, and the reclassification, purchase, and redemption of shares, are internal affairs governed by the law of the state of incorporation. (See also Corp. Code, § 1108; State Farm Mutual Automotive Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, 442-443.) Here, the Agreement called for the application of Delaware law in its construction. Under Delaware law, a consolidation occurs when merging corporations form a new corporation. (8 Del. Code § 251 (a).)
It was undisputed that pursuant to the Agreement, the corporations that merged in 2001 were Texaco and Chevron’s subsidiary, Keepep. The Agreement provided that at the stated time, Chevron’s wholly owned subsidiary Keepep would be merged into Texaco, whereupon the existence of Keepep would cease, leaving Texaco as the surviving corporation.
Further, the Delaware Secretary of State certified that the Agreement was “approved, adopted, certified, executed and acknowledged” by the party corporations and that Texaco was the surviving corporation in the merger. Texaco was incorporated in 1926 and remained a corporation in good standing on the date so certified in January 2007. Texaco registered in this state as a foreign corporation and continues to be qualified to transact business in this state. Similarly, Chevron was incorporated in 1926 and remains duly incorporated, although it has undergone name changes.
We conclude that Chevron made a prima facie showing that the estate would be unable to prove either that Chevron acquired the assets of Texaco or that the two corporations merged. The burden thus shifted to the estate to raise a triable issue of fact. (See Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
3. The Estate’s Contentions
The estate contends that it raised triable issues of fact as to the existence of a merger or consolidation of Texaco and Chevron, resulting in a new company, ChevronTexaco. Although the estate’s opening brief identified only actual merger and consolidation in its headings and subheadings as triable issues of fact, we have gleaned three other issues from the opening brief’s stream-of-consciousness arguments: quasi-estoppel, de facto merger, and alter ego. The estate argues that the evidence shows that Chevron should be estopped from denying that there was a Chevron-Texaco merger, that the transaction between Chevron and Texaco was a de facto merger or consolidation, and that, because Keepep was the alter ego of Chevron, its merger should be treated as Chevron’s merger. In addition, for the first time in their reply brief, the estate contends that Chevron expressly or impliedly agreed to assume Texaco’s liabilities.
Headings for the identified issues appear in the reply brief. “Each brief must: [¶]... [¶] [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B), italics added.) Legal argument that is not set forth as required by the rule may be treated as waived. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.)
4. Actual Merger or Consolidation
Corporations are wholly creatures of statute. (Silva v. Coastal Plywood & Timber Co. (1954) 124 Cal.App.2d 276, 278-279.) Thus, whether there was an actual merger or consolidation must be determined under the applicable statute. Title 8 Delaware Code, section 251, provides that certain conditions must be met to give effect to mergers or consolidations, including the filing of certificates of merger, consolidation or amendment with the Secretary of State. Once filed with the Delaware Secretary of State, certificates of merger and consolidation become public records. (8 Del. Code § 103 (c)(8).) Thus, had an actual merger or a consolidation taken place, the public record would have so shown.
Instead of the simple expedient of excerpts of the public record, the estate alleged express and implied admissions in the annual reports, press releases, ChevronTexaco signs at San Ardo Field, and a letter from Chevron U.S.A. indicating ChevronTexaco’s intent to upgrade facilities at San Ardo Field. Because the alleged express or implied admissions are not certificates that satisfy the statutory prerequisites to an effective merger or consolidation, we conclude that the estate did not produce evidence of an actual merger or consolidation between Chevron and Texaco.
5. No Basis for Estoppel
The estate contends that Chevron should be estopped to deny a merger or consolidation with Texaco, based upon the doctrine of quasi-estoppel. Quasi-estoppel is a “vague” form of judicial estoppel, which prevents a party from taking inconsistent positions in litigation. (Associated Creditors’ Agency v. Wong (1963) 216 Cal.App.2d 61, 67.) The earlier position need not have been taken in same proceeding. (Estate of Coleman (1955) 132 Cal.App.2d 137, 140.) For example, “‘[o]ne who induces a defendant to obtain a foreign divorce and pays the expenses thereof, and afterwards marries her, is precluded from attacking the validity of the decree.’” (Ibid.) However, “at the very least, the position presently taken must be clearly inconsistent with that assumed earlier, so that one necessarily excludes the other [citation]....” (Associated Creditors’ Agency v. Wong, supra, at p. 67.)
Similarly, in the case upon which the estate relies, a bigamist was not permitted to assert the validity of his first marriage by claiming to have falsely stated on his second marriage license application that he had not been previously married. (See Estate of Anderson (1997) 60 Cal.App.4th 436, 439-442.)
The estate points to Soler’s declaration in which he states that he was a member of a Chevron task force overseeing the restructuring of various of Chevron and Texaco subsidiaries “following the joining of those two companies in October 2001.” The estate also cites Chevron’s memorandum of points and authorities filed in support of its motion, in which it acknowledged that it and Texaco had both referred to the Keepep-Texaco merger -- in “lay terminology” -- as a merger between Chevron and Texaco. The estate also points to similar language in Chevron’s press release and annual report.
“[J]udicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary.” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422, italics omitted.) A reviewing court will not consider a contention for the first time on appeal when the issue was within the trial court’s discretion. (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131-1132.) Although all the alleged admissions were before the trial court, the estate did not argue quasi-estoppel below. Further, the argument is not made under a separate heading as required by California Rules of Court, rule 8.204(a)(1)(B). For both reasons, we conclude that the issue has not been preserved for appeal.
In any event, assuming for discussion that Chevron’s statements were so clearly inconsistent with its present proof, the estate does not claim to have been prejudiced by the statements -- an essential element of any kind of estoppel. (Associated Creditors’ Agency v. Wong, supra, 216 Cal.App.2d at p. 67.) Thus, the estate did not raise a triable issue regarding estoppel.
6. De Facto Merger or Consolidation
The estate contends that there was a de facto merger, and that the facts are analogous to those in Marks, supra, 187 Cal.App.3d 1429. In Marks, the plaintiff was injured by a defective product manufactured by a company that was later acquired by a wholly owned subsidiary of Minnesota Mining & Manufacturing Company (3M). (Id. at pp. 1431-1432.) The subsidiary was reorganized few years after the acquisition, by becoming a division of 3M pursuant to a reorganization agreement under which 3M purchased all its assets, assumed specified liabilities, and required it to dissolve. (Id. at pp. 1432, 1435.) The Marks court identified “five factors which indicate whether a transaction cast in the form of an asset sale actually achieves the same practical result as a merger....” (Id. at p. 1436.)
The factors articulated by the court are as follows: “(1) was the consideration paid for the assets solely stock of the purchaser or its parent; (2) did the purchaser continue the same enterprise after the sale; (3) did the shareholders of the seller become shareholders of the purchaser; (4) did the seller liquidate; and (5) did the buyer assume the liabilities necessary to carry on the business of the seller? [Citations.]” (Marks, supra, 187 Cal.App.3d at p. 1436.)
Although the Keepep-Texaco merger was not cast in the form of a sale of Texaco’s assets, the estate contends that there was such a sale, and suggests that the Marks factors should be considered here. The estate contends that Chevron acquired Texaco’s oil drilling operations. However, the only drilling company mentioned in the evidence was TEPI, which underwent a name change to Chevron U.S.A., but remained a separate corporation, as shown by the certificate of the Delaware Secretary of State. It was undisputed that TEPI was a subsidiary of Texaco, and Soler stated in his declaration that Texaco’s subsidiaries, including TEPI, were its primary assets, which Chevron did not purchase.
The evidence that the estate cites as proof of the purchase of Texaco’s assets is a five-page press release, without any effort to pinpoint the particular language that might support the point made. A general reference to a block of pages in the record leaves the appellate court without the ability to evaluate the facts adequately. (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) The estate bears the burden on appeal to show error affirmatively, regardless of its burden in the trial court; it is not the obligation of this court to search the record for triable issues. (Claudio v. Regents of University of California (2005)134 Cal.App.4th 224, 230.) Because the estate’s broad reference to the press release does not meet that burden, it does not meet its burden to show that it raised a triable issue of fact to refute Chevron’s prima facie showing that it did not purchase Texaco’s assets. Thus, the five elements articulated in Marks do not come into play. (See Marks, supra, 187 Cal.App.3d at p. 1436.)
7. Alter Ego
The estate argues that Keepep was the alter ego of Chevron, and the merger should therefore be treated as Chevron’s merger. The estate was required to plead its alter ego theory by alleging facts showing such a unity of interest and ownership that the separate personalities of the parent and subsidiary did not exist, and that inequity would result unless they were treated as a single entity. (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749.) A plaintiff may not rely on unpleaded theories to defeat a motion for summary judgment, without first seeking leave in the trial court to amend the complaint. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) As there were no alter ego allegations in the first amended complaint, and the estate does not claim to have sought leave to amend, it may not rely upon that theory now.
Further, alter ego was not identified as an issue in the estate’s statement of undisputed facts, no facts regarding alter ego appear in the statement, and the estate did not raise this contention in the trial court. Under such circumstances, the estate may not assert this issue for the first time on appeal. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-31.)
8. Implied Agreement to Assume Liabilities
For the first time in its reply brief, the estate contends that Chevron expressly or impliedly agreed to assume Texaco’s liabilities, thereby satisfying another exception to nonliability enunciated in Ray v. Alad Corp., supra, 19 Cal.3d at page 28. Points first raised in a reply brief are deemed waived unless the interests of justice require that we consider them. (Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.) We have already concluded elsewhere in this discussion that Chevron was not required to establish any of the exceptions set forth in Ray v. Alad Corp. (See Potlatch Corp. v. Superior Court, supra, 154 Cal.App.3d at pp. 1150-1151.) Thus, the interests of justice do not require considering the estate’s final point.
We conclude that the estate has not met its burden to establish that the trial court erred in granting Chevron’s motion for summary judgment.
DISPOSITION
The judgment is affirmed. Chevron shall have its costs on appeal.
WE CONCUR: RUBIN ACTING P. J., BIGELOW, J.
All further statutory references are to the Corporations Code, unless otherwise indicated.