Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV083172
Duffy, J.
John O’Reilly filed suit in April 2007 alleging, inter alia, a claim of misappropriation of trade secrets against Elon Musk. The alleged misconduct occurred in 1995, but O’Reilly claimed that he did not learn of it until 2005. The court, concluding that any claim that might be asserted belonged to O’Reilly’s former employer, Remote Telecom, Inc. (RTI), a suspended corporation, granted Musk’s motion for summary judgment.
O’Reilly contends on appeal that the court erred in granting summary judgment. We will affirm the judgment.
PROCEDURAL BACKGROUND
O’Reilly filed this action against Musk on April 4, 2007. In July 2007, as a self-represented litigant, he filed the operative pleading, the second amended complaint (complaint). O’Reilly alleged that in October 1995, he met with Musk, who claimed at the time to have been a student at Stanford University, to discuss the possibility of working as a salesman of O’Reilly’s Internet Merchant Channel (IMC), selling advertising to merchants. IMC “was [O’Reilly’s] proprietary, Internet-based mapping and advertising system.” The system, developed through the efforts of “[O’Reilly] and his staff” “provided a highly user-friendly interface that permitted Internet users to view merchant advertisements (such as restaurant menus) and then obtain driving directions to those merchants.” During the meeting, O’Reilly “informed Musk that IMC was proprietary and confidential, [and] Musk verbally represented to [O’Reilly] that he would keep IMC information in confidence.” (Capitalization omitted.) O’Reilly disclosed to Musk at this October meeting and on two subsequent meetings that month various aspects of the IMC, including its operation, existing and future merchant base, and pricing. O’Reilly and Musk “agreed to formalize their working relationship” after the former returned from a business trip. When O’Reilly returned, he was unable to reach Musk and thought that he had simply decided not to pursue the job.
We will sometimes refer to the allegations in the complaint in this paragraph and in the succeeding two paragraphs without the prefatory “O’Reilly alleged” in order to avoid undue repetition of the phrase.
Musk thereafter, having “misrepresented himself [to O’Reilly] as simply a Stanford student seeking an opportunity to sell IMC advertising, ” gained access to information about IMC that he then used to enhance a concept that he had for his own business, “Zip2.” Zip2 was sold in March 1999 to Compaq for $307,000,000 in an all-cash transaction. O’Reilly learned about Musk’s company, Zip2, and that it was described “as ‘an online map service’ company, ” upon reading a book in April 2005, nearly 10 years after meeting Musk. It was not until this time that O’Reilly became aware of Zip2, realized “(a) that he had been injured; and (b) that it was Musk who had caused the injury.” (Capitalization omitted.)
O’Reilly alleged six causes of action in the complaint. These included claims for fraud, fraudulent concealment, conspiracy to defraud, misappropriation of trade secrets under the Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.; UTSA), unfair competition, and unjust enrichment. He claimed, inter alia, that Musk had committed fraud by misrepresenting his intentions in order to “induce [O’Reilly] to divulge confidential and proprietary information about the IP”; O’Reilly “suffered from MUSK’s wrongful expropriation of the IP, which expropriation permitted Zip2 to capture market share that would have otherwise been gained by IMC”; and “[b]y [Musk’s] aforementioned actions [alleged in the complaint and incorporated in each cause of action], MUSK misappropriated Plaintiff’s IP, which IP included certain of Plaintiff’s trade secrets....”
After answering the complaint in March 2008, Musk filed on March 24, 2009, a motion for summary judgment, or, in the alternative, for summary adjudication of claims (motion), pursuant to Code of Civil Procedure section 437c. Musk asserted essentially four grounds for the motion, namely, (1) O’Reilly lacked standing to assert any of the claims alleged in the complaint; (2) O’Reilly could not establish that he had suffered any injury (i.e., he had no proof that any alleged confidential information regarding IMC was used by Musk in connection with Zip2); (3) the claims were barred by the statute of limitations; and (4) none of the information allegedly disclosed by O’Reilly to Musk constituted confidential information. O’Reilly opposed the motion. The motion was heard and submitted on August 4, 2009, and on the same day the court granted Musk’s motion for summary judgment “on the ground that plaintiff lacks standing to maintain this action.” (Fn. omitted.)
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
After the filing of the motion, O’Reilly made an ex parte application to continue the hearing to permit him additional time to conduct discovery to respond to the motion. Musk opposed the application, the court granted O’Reilly a six-week continuance of the hearing on the motion.
A judgment was entered in favor of Musk on August 18, 2009. O’Reilly filed a motion for new trial, which Musk opposed. The court denied the new trial motion. O’Reilly filed a timely notice of appeal from the judgment.
Of course, the order denying O'Reilly’s new trial motion is a nonappealable order; it is, however, reviewable on an appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)
DISCUSSION
I. Standard of Review
“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 (Aguilar).) As such, the summary judgment statute (§ 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. (§ 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, revd. on other grounds Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490.)
“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (§ 437c, subd. (f)(1).) Like summary judgment, the moving party’s burden on summary adjudication is to establish evidentiary facts sufficient to prove or disprove the elements of a claim or defense. (§ 437c, subds. (c), (f).) The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must “ ‘show[ ] that one or more elements of the cause of action... cannot be established’ by the plaintiff.” (Id. at p. 853, quoting § 437c, subd. (o)(2).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff’s claim. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) Alternatively, a defendant meets its burden by submitting evidence “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence” supporting an essential element of its claim. (Aguilar, at p. 855.) A plaintiff’s lack of standing to sue is an appropriate ground for a defendant’s moving for summary judgment. (See, e.g., Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761 [because the plaintiff had no standing to sue, trial court erred in denying summary judgment]; Republic Indemnity Co. v. Schofield (1996) 47 Cal.App.4th 220, 225-227 [the plaintiffs-officers, directors, and employees who were not insureds-lacked standing to sue on insurance contract issued to professional corporation; summary judgment in favor of insurer proper].)
Since both summary judgment and summary adjudication motions involve pure questions of law, we review the granting of summary judgment or summary adjudication de novo to ascertain from the papers whether there is a triable issue of material fact. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.) In doing so, we “consider[] 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.)
To the extent that O’Reilly’s appeal of the judgment also challenges the order denying his new trial motion, although rulings on motions for new trial are generally reviewed for abuse of discretion (Aguilar, supra, 25 Cal.4th at p. 859), “in the case of an order denying a new trial following summary judgment, the determinations underlying the denial dictate our standard of review. [Citation.] To the extent the denial relies on the resolution of a question of law, including the nonexistence of triable issues of fact, we examine the matter de novo. [Citations.]” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)
In our 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. [Citation.]” (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) 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. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
II. Summary Judgment Motion
A. Absence of Standing Established by Musk
As noted above, Musk contended in his motion, inter alia, that the action was without merit because O’Reilly had no standing to assert the claims alleged in the complaint. In support of this contention, Musk argued that, notwithstanding the allegation in his verified complaint that IMC was “Plaintiff’s proprietary, Internet-based mapping and advertising system”-an allegation that was repeated a number of times in varying ways in his complaint-the alleged trade secrets belonged to O’Reilly’s employer, RTI. (Italics added.)
The evidence supporting Musk’s lack-of-standing argument was marshaled primarily from O’Reilly’s deposition testimony and verified discovery responses. O’Reilly testified in deposition that RTI had developed the IMC. His testimony concerning the ownership of the IMC was unequivocal: “Q: Did RTI own the IMC and its intellectual property? [¶ Objection. ¶ A.] I believe so, yes.” A short time later in his deposition, O’Reilly answered “Yes” in response to the question, “And RTI owned the intellectual property relating to IMC?” O’Reilly testified further on multiple occasions that RTI never sold, assigned, licensed, gifted, or otherwise transferred its intellectual property, including the IMC, to anyone (including O’Reilly himself). He responded, “I don’t think so” to the question, “Did you ever obtain any license from RTI to use any of RTI’s intellectual property?” And O’Reilly testified that he had never obtained any ownership interest in that property: “Q. Did you ever obtain ownership of any of RTI’s intellectual property? [¶] A. Direct ownership? I don’t think so, no.” He testified that it was his understanding that any ownership rights he might have to RTI’s intellectual property derived from his status as an RTI shareholder. Furthermore, in response to an interrogatory asking whether, at the time of the circumstances and events surrounding the occurrence that gave rise to his lawsuit, he was acting as anyone’s agent or employee, O’Reilly stated: “Plaintiff was President of Remote Telecom, Inc. He managed the company’s day-to-day operations.”
Musk presented evidence in his motion showing that RTI was incorporated in California in August 1991. His motion also included a January 2009 certificate of status from the California Secretary of State, indicating that RTI’s powers, rights, and privileges had been suspended by the California Franchise Tax Board on October 2, 1995, and that such suspension had remained effective.
Based upon this evidence, Musk asserted that O’Reilly had no standing to assert the claims alleged in the complaint, and the court granted summary judgment on that basis. We agree that summary judgment was properly granted on that basis.
It is elemental that a named plaintiff generally must have standing to prosecute an action. (§ 367: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”) “ ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.’ [Citation.]” (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920-921.) Stated otherwise, “[t]he existence of standing generally requires that the plaintiff be able to allege injury, i.e., an invasion of his legally protected interests. [Citations.]” (Surrey v. TrueBeginnings (2008) 168 Cal.App.4th 414, 417.) “The real party in interest has ‘ “an actual and substantial interest in the subject matter of the action, ” and stands to be “benefited or injured” by a judgment in the action.’ [Citation.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55.)
Standing is a threshold legal matter to be decided by the court. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 103.) Because it is a fundamental threshold issue, allegations supporting standing “should be direct and unequivocal and not inferential [citation]” (Kline Hawkes California SBIC, L.P. v. Superior Court (2004) 117 Cal.App.4th 183, 194), and standing may be challenged at any time, even, in the first instance, on appeal. (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345.)
The claims alleged in the complaint are based upon the alleged misappropriation of trade secrets, namely, IMC and related intellectual property. (See K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 958: UTSA, Civ. Code, § 3426.7, subd. (b), “preempts common law claims that are ‘based on the same nucleus of facts as the misappropriation of trade secrets claim for relief.’ ”) This fact is readily apparent from the allegations of the complaint. It is also demonstrated by O’Reilly’s responses to discovery: “In their totality, the [complaint’s] causes of action are derived from Defendant’s wrongful actions to obtain access to Plaintiff’s IP.” O’Reilly also confirmed in his opposition to the motion and in his new trial motion that his claims all stem from Musk’s alleged misappropriation of trade secrets O’Reilly claims to be his own.
In the introduction to his opposition to summary judgment, O’Reilly stated: “At the core of this case is Musk’s misappropriation of trade secrets from [RTI], a company O’Reilly founded and then operated in a manner such that there was no difference between it and himself.” Likewise, in his motion for new trial, O’Reilly stated, “At the core of this case is Musk’s misappropriation of trade secrets regarding the [IMC] in 1995.”
A claim for misappropriation of trade secrets under UTSA includes as one of its elements the plaintiff’s ownership of the trade secret. (Cytodyn, Inc. v. Amerimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 297; Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1665.) Thus, where the trade secret is one that does not belong to the plaintiff, a trade secret misappropriation claim is subject to dismissal for lack of standing. (Venango River Corp. v. Nipsco Industries, Inc. (N.D.Ill.Dec. 15, 1994) 1994 U.S. Dist. Lexis 17898 (Venango River Corp).)
In Venango River Corp., the plaintiffs, Venango River Corporation (Venango) and Venango’s officers (Darling and Alexander)-Venango being the sole shareholder and manager of South Shore Railroad (South Shore)-asserted, inter alia, a claim for trade secret misappropriation. The court granted the defendants’ motion for summary judgment on this claim, concluding that the plaintiffs had no standing under either Illinois or Indiana law. It held, “In order to state a claim under either act, [the] plaintiffs must be able to demonstrate that they owned the trade secrets. [Citations.] ‘Theft of trade secrets is an injury to the corporation, for which it is the proper plaintiff.’ [Citations.]” (Venango River Corp., supra, at p. *28, fn. omitted.) The court concluded that the confidential information was compiled in the course of the company’s business, and thus did not belong to Venango. (Id., at p. *29.) It further held that “[t]he fact that Darling and Alexander personally compiled the information does not alter this conclusion. Information compiled by employees or officers in the course of a company’s business belong to the company, not the individual. [Citation.] This means that officers of a corporation do not have ownership rights in confidential business information. [¶] Since the trade secrets at issue belong to the South Shore, it is the proper plaintiff in a claim for misappropriation of trade secrets.” (Ibid.; see also Von Brimer v. Whirlpool Corp. (9th Cir. 1976) 536 F.2d 838, 842-847 [plaintiff shareholder, who did not have proprietary interest in patented item of corporation, had no standing to sue for interference with contractual relations and interference with prospective economic advantage])
Here, the undisputed facts-based upon O’Reilly’s own testimony-were that the corporation, RTI, was the owner of the trade secret being sued on, and that RTI never sold, assigned, licensed, gifted, or otherwise transferred its interest in the trade secret to anyone (including O’Reilly). O’Reilly, as an officer and employee of the corporation, did not obtain any ownership rights to RTI’s trade secrets, even if he was involved in their creation during such employment. (Venango River Corp., supra, at pp. 28-29; see also Lab. Code, § 2860: “Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment.”) He therefore lacked standing to assert the claims, as they were all based on the alleged misappropriation of trade secrets belonging to the corporation, RTI.
B. O’Reilly’s Arguments Re Standing
The arguments in opposition to Musk’s contention that O’Reilly had no standing to assert the claims alleged in the complaint are a moving target. His contentions in response to Musk’s standing objection are essentially twofold. First, he argued below in opposition to the motion that he was RTI’s alter ego and therefore was permitted to sue for Musk’s alleged misappropriation of the IMC. Second, he argues on appeal-and argued below, after summary judgment was granted, in his motion for new trial-that he and RTI were involved in an implied joint venture relative to the development of the IMC, and therefore he had an ownership interest in it that gave him the right to sue on a claim for its misappropriation. Neither argument has merit.
1. Alter ego
In his opposition to the summary judgment motion, in a heading captioned “O’Reilly has Standing to Sue because he is RTI’s alter ego, ” O’Reilly argued that he exerted “total control” over RTI’s business operations such that “[t]here [was] no difference between O’Reilly and the entity known as RTI.” He also argued that the suspension in 1995 of RTI’s corporate status, together with the fact that he personally paid some of RTI’s expenses, demonstrated that there was a “unity of interests” between RTI and O’Reilly. At the hearing on the motion, although O’Reilly indicated that he was “referring [sic: refraining] from using that phrase [‘alter ego’] exactly, ” he argued that “[o]ver time, ... the interest of RTI essentially merged with my own interest.... There was never a formal assignment of the technology from RTI to me, but the net result was that from 1995 onward, I was essentially RTI.”
On appeal O’Reilly argues that there was a “merger of interests” between RTI and him, in essence, an alter ego argument. Thus, regardless of his attempt on appeal to distance himself from it, O’Reilly’s sole argument in support of standing made below (prior to his new trial motion) was that he was the corporation RTI’s alter ego. The court correctly rejected this argument.
Despite this reiteration of the alter ego argument, O’Reilly eschews the alter ego theory in his reply brief, claiming that “that argument is not on appeal.”
As our high court has explained, “The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff's interests. [Citation.] In certain circumstances the court will disregard the corporate entity and will hold the individual shareholders liable for the actions of the corporation: ‘As the separate personality of the corporation is a statutory privilege, it must be used for legitimate business purposes and must not be perverted. When it is abused it will be disregarded and the corporation looked at as a collection or association of individuals, so that the corporation will be liable for acts of the stockholders or the stockholders liable for acts done in the name of the corporation.’ [Citation.]” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300 (Mesler).)
“The alter ego doctrine is strictly limited by the demands of equity; it applies ‘only in narrowly defined circumstances and only when the ends of justice so require.’ [Citation.] The alter ego doctrine will only be applied to avoid an inequitable result. 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. [Citation.]” (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 249, quoting Mesler, supra, 39 Cal.3d at p. 301, citing Mesler, at pp. 300, 302-304.)
It is plain that the alter ego theory cannot be applied here to permit O’Reilly to pierce the corporate veil of RTI, the corporation in which he was an officer, director, and shareholder, in order to bring suit to enforce that corporation’s trade secret rights. As noted, the doctrine obtains “only in narrowly defined circumstances. (Mesler, supra, 39 Cal.3d at p. 301.) And it applies in instances in which “a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff's interests.” (Id. at p. 300.) That is not the case here. The only “third party” here is Musk, and he is obviously not seeking to pierce the corporate veil of RTI to impose liability on O’Reilly, its shareholder. O’Reilly cannot invoke the alter ego doctrine in an effort to acquire standing to bring an affirmative claim that should have been brought, if at all, by the corporation he controlled. “ ‘Parties who determine to avail themselves of the right to do business by means of the establishment of a corporate entity must assume the burdens thereof as well as the privileges.’ [Citation.] An individual who has obtained the benefits of corporate limited liability will not be permitted to repudiate corporate existence just because the corporation has become an inconvenience. [Citation.]” (Opp v. St. Paul Fire & Marine Ins. Co. (2007) 154 Cal.App.4th 71, 76 [shareholder (a licensed contractor) of corporation that did not hold contractor’s license could not bring suit on corporation’s construction contract, thereby circumventing law preventing unlicensed contractor from recovering on payment bond].)
Musk relies on Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, in support of his position that O’Reilly may not assert that he is RTI’s alter ego as a means of establishing standing. There, the national Communist Party (Party) sought to have imposed a constructive trust in its favor against two public benefit corporations in order for the Party to gain an ownership interest in property acquired by the corporations. The appellate court reversed the trial court’s imposition of such constructive trusts, and specifically rejected the party’s attempt to invoke the alter ego doctrine, observing that the purpose of the doctrine is “to prevent a corporation from using its statutory separate corporate form as a shield from liability only where to recognize its corporate status would defeat the rights and equities of third parties; it is not a doctrine that allows the persons who actually control the corporation to disregard the corporate form.” (Id. at p. 994.) The court held that the Party could not assert the alter ego doctrine, concluding: “ ‘Alter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person. [Citation.]’ [Citation.] Alter ego is utilized to prevent two parties with the same interest from inequitably using the corporate form to thwart a third party’s rights; it is not designed to unite two separate entities with opposing interests for the benefit of the one claiming to control the other. In this case, there is no third party; [the Party] claims that it itself is identical to the corporations. [The Party has] cited no case authority, and we have found none, in which rather than being used to reach behind the corporate form to attach liability to another individual or entity, the alter ego doctrine has been employed to establish a relationship of identity between the defendant corporation and the plaintiff itself, in order to allow the plaintiff to obtain for itself the assets of the corporation. To the contrary, our Supreme Court has stated that the corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require. [Citation.] [The Party] cannot use the alter ego doctrine to ‘pierce the corporate veil’ of a separate corporation which it claims it set up to conceal its property from the federal government and to circumvent the laws of the state concerning duties of corporate directors.” (Id. at p. 995; see also Seretti v. Superior Nat. Ins. Co. (1999) 71 Cal.App.4th 920, 931 [shareholders not permitted to invoke alter ego doctrine to obtain status of “insureds” under policies where corporation was only named insured].)
Plainly, the alter ego doctrine cannot be applied here to confer standing upon O’Reilly. Regardless of whether he expressly invokes the doctrine (as he initially asserted in opposition to the motion), or simply argues its application in substance by claiming there to have been a “merger of interests” between RTI and him, the corporate existence of RTI, the owner of the trade secrets at issue in this litigation, cannot be disregarded to allow O’Reilly to bring suit individually.
2. Implied joint venture
O’Reilly contends on appeal-as he did in his motion for new trial after the court had already granted summary judgment-that there was a triable issue of material fact concerning whether there was an implied joint venture between RTI and himself concerning IMC. He argues that he had standing to sue because of this implied joint venture arrangement. We conclude that this belatedly asserted theory was waived, and, in any event, does not afford O’Reilly a basis for claiming error in the granting of summary judgment.
a. waiver
In the first instance, we conclude that O’Reilly waived the argument that he had standing to assert the claims alleged in the complaint because of an alleged implied joint venture between RTI and himself. A party opposing summary judgment is required to provide a separate statement that responds to each material fact that the moving party contends to be undisputed, and that identifies any additional material facts that the opposing party believes to be disputed. (§ 437c, subd. (b)(3).) “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for... summary judgment to determine quickly and efficiently whether material facts are disputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.)
“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (§ 437c, subd. (b)(3).)
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22 (North Coast) is instructive regarding the consequences of the failure of a party opposing summary judgment to properly identify factual issues in its separate statement. In North Coast, the plaintiff filed a construction defect action with respect to a business park, and a subcontractor successfully moved for summary judgment on the basis that the suit was time-barred, because the defect at issue-drainage problems related to the design and construction of a retaining (crib) wall-were known to the plaintiff more than three years before suit was filed. (Id. at p. 26.) The plaintiff argued on appeal that even if it had discovered a drainage defect concerning the crib wall more than three years before filing suit, it had not been “aware of a different alleged ‘defect, ’ i.e., that the footing of the crib wall was defectively designed or constructed.” (Id. at p. 28, fn. omitted.) The court rejected this argument, observing that it had not been raised below, and concluding that the plaintiff was precluded from making it “both under general principles of ‘waiver’ and ‘theory of the trial, ’ and under the more particularized statutory provisions applicable to summary judgment motions.” (Ibid.)
The court held that the plaintiff failed to preserve the point at the trial level because after the subcontractor claimed in its motion that the statute of limitations had run regarding the drainage defect claim, the plaintiff was required to (but failed to) “direct the court’s attention to any different factual basis of liability on which North Coast might rely.” (North Coast, supra, 17 Cal.App.4th at p. 29.) Under the “ ‘theory of trial’ ” applicable as well to summary judgment motions, the court concluded that the plaintiff could not raise this new argument on appeal after failing to raise it in opposition to the motion because allowing the argument would be unfair to both the moving party and the trial court. (Ibid.)
The North Coast court also rejected the plaintiff’s argument because it had failed to specify it in its separate statement in opposition to the summary judgment motion. It concluded that the plaintiff, in opposing summary judgment, was required by statute in its separate statement “to specify within that document any facts [it] deems to be disputed facts material to the issue presented.” (North Coast, supra, 17 Cal.App.4th at p. 30.) In refusing to consider the plaintiff’s appellate arguments, the court explained, “In the proceedings below, North Coast raised neither the fact of a different defect nor the theory that such defect was the basis for its claim. That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties. We will not place on the trial court the burden of conducting a search for facts which counsel failed to bring out, nor can we attribute a level of prescience to the trial court which counsel lacked. Instead, we adhere to the familiar rule that ‘possible theories not fully developed or factually presented to the trial court cannot create a “triable issue” on appeal.’ [Citation.]” (Id. at p. 31, fn. omitted; see also Wall Street Network, Ltd. v. New York Times Co., supra, 164 Cal.App.4th at pp. 1189-1191.)
North Coast is applicable here. At no time either in his extensive opposition papers or in argument at the hearing did O’Reilly claim that because he and RTI were joint venturers concerning IMC, he held a proprietary interest in the trade secrets and thus had standing to sue; rather, his sole arguments in favor of standing were that he was RTI’s alter ego and that there was a merger of interests between RTI and himself. Specifically, there was nothing in his separate statement citing to evidence on which O’Reilly relied that demonstrated the existence of a joint venture, namely, “ ‘a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation, or as an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.’ [Citations.]” (Sime v. Malouf (1949) 95 Cal.App.2d 82, 95-96; see also Lindner v. Friednash (1958) 160 Cal.App.2d 511, 517.) And, as noted above, O’Reilly did not argue in his opposing memorandum or at the hearing that his standing to sue derived from an implied joint venture with RTI. As was true in North Coast, we conclude that under both principles of waiver and theory of the case, and the requirements of section 437c that the opposing party specify the material disputed facts which he or she claims as a basis for denial of summary judgment, O’Reilly is precluded from raising his implied joint venture argument here. To conclude otherwise would be unfair to both the trial court and Musk, neither of whom was afforded the opportunity to address the joint venture theory at the time of the motion.
O’Reilly’s arguments that he did not waive the joint venture theory and that it is not barred by the requirements of section 437c are unavailing. He argues that the court in essence should have determined that he was asserting an implied joint venture on the basis of the opposition to the motion he presented. We disagree with O’Reilly’s implied assertion that the trial court should have somehow divined that O’Reilly claimed that he and RTI had a joint venture arrangement. (See North Coast, supra, 17 Cal.App.4th at p. 31 [refusing to “place on the trial court the burden of conducting a search for facts which counsel failed to bring out, ” or to require “prescience” [of] the trial court].) Further, we disagree with O’Reilly’s claim that he adequately raised the joint venture theory because his separate statement included a citation to evidence that he made some payments on behalf of RTI. O’Reilly’s simple citation to evidence of payments that he made, without more (e.g., evidence that he and RTI agreed to share profits and losses or agreed to combine their skill to develop IMC, or legal argument concerning an implied joint venture) was insufficient to present the joint venture theory to the court for its consideration.
b. merits of joint venture theory
We have concluded that O’Reilly is barred from asserting belatedly his theory that he had standing because of an implied joint venture with RTI. Were we to consider it, we would find that it nonetheless lacks merit.
It is well settled that “the relationships of employer-employee and joint adventurers are incompatible and cannot exist together between the same parties in relation to the same transaction. [Citations.]” (Wiltsee v. California Employment Commission (1945) 69 Cal.App.2d 120, 127; see also Bunn v. Lucas, Pino and Lucas (1959) 172 Cal.App.2d 450, 465, disapproved on another ground in Chambers v. Kay (2002) 29 Cal.4th 142, 155, fn. 8.) The undisputed evidence was that O’Reilly was an employee of RTI. Thus, a joint venture relationship between RTI and O’Reilly concerning the IMC would have been incompatible with the employer-employee relationship between the same parties.
O’Reilly, however, contends that there was a disputed issue of fact as to whether he was actually an RTI employee. This argument is without merit. In his separate statement of undisputed material facts in support of his motion for summary judgment, Musk asserted-as undisputed material fact (UMF) number 13-that “O’Reilly was acting as an agent and employee of RTI at the time of the alleged misappropriation.” In support of this fact, Musk cited O’Reilly’s response to form interrogatory number 2.11. In response to that interrogatory-which asked whether, at the time of the circumstances and events surrounding the occurrence that gave rise to his lawsuit, he was acting as anyone’s agent or employee-O’Reilly stated: “Plaintiff was President of Remote Telecom, Inc. He managed the company’s day-to-day operations.” Although O’Reilly indicated in his responsive separate statement that he disputed UMF number 13-stating in part that it “misconstrues O’Reilly’s response to the interrogatory”-he presented no evidence in opposition to the motion to refute the fact that he was an agent and employee of RTI at the time of the alleged misappropriation. Accordingly, we reject his assertion that there was a triable issue of material fact as to whether he was an RTI employee. (See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116 [party opposing summary judgment must submit separate statement that both indicates material fact is disputed and references the supporting evidence demonstrating that fact is disputed].)
Even assuming arguendo that O’Reilly could overcome the impediment that he was an RTI employee, his joint venture argument nonetheless fails because it is based upon the contradictory assertion that he and RTI-by reason of his payment of $4,899 of RTI expenses in 1996-became joint venturers in 1996, while Musk’s alleged misappropriation of trade secrets occurred in 1995. O’Reilly cites Lindner v. Friednash, supra, 160 Cal.App.2d at p. 518, for the proposition that “where one joint adventurer purchases personal property pursuant to the joint venture agreement, the property belongs to the joint venture....” Here, the property of the purported joint venture-IMC-was purchased, or actually created, by RTC in 1995, before the claimed existence of the joint venture. IMC therefore could not have been purchased (or created) “pursuant to” a joint venture agreement that allegedly occurred the following year. Thus, O’Reilly’s contention that he had a joint venture interest in the IMC created in 1995, based upon a joint venture created in 1996, lacks merit.
In his opening brief, O’Reilly repeatedly asserts that the joint venture arose in 1996.
Because we have concluded that O’Reilly lacked standing and that the granting of summary judgment in favor of Musk on that basis was appropriate, we need not address the alternative grounds for summary judgment raised in Musk’s motion. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 845, fn. 5 [appellate courts will not address issues whose resolution is unnecessary to the disposition of appeal].)
C. Leave to Amend Complaint
O’Reilly asserts that, assuming he lacked standing, the trial court abused its discretion by refusing to allow him leave to amend to substitute a plaintiff with standing to sue. We reject that contention.
Since the pleadings set the boundaries of the issues to be resolved at summary judgment (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90), if a plaintiff wishes to raise an unpleaded theory in opposition to summary judgment, he or she must move to amend the complaint before the hearing (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699). Since RTI was not a named plaintiff, any allegation that it, rather than O’Reilly, was the aggrieved party was plainly an unpleaded issue for which leave to amend should have been sought.
Initially, it is less than clear that O’Reilly preserved the issue for appeal. O’Reilly did indicate, in a three-line passage at the end of his opposition to the summary judgment motion, that if the court granted the motion because O’Reilly lacked standing, “then O’Reilly requests leave to substitute in a plaintiff that has standing to sue.” O’Reilly did not otherwise indicate the substance of any proposed amendment. At the hearing on the motion, O’Reilly, after the court indicated a tentative disposition in favor of Musk on the question of standing, argued that it would be appropriate to name RTI as a plaintiff, citing Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235. The court indicated that it was “not really at that issue now, though.” After the court issued its order the same day-concluding that summary judgment should be granted because O’Reilly lacked standing and without addressing O’Reilly’s request to amend the complaint-O’Reilly did not pursue further his request for leave to amend, either by formal motion, or by inclusion of the request in his motion for new trial.
Where a defendant moving for summary judgment makes a sufficient showing to disprove the plaintiff’s claims, “ ‘ “the plaintiff forfeits an opportunity to amend to state new claims by failing to request it.” ’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254.) Here, although O’Reilly made a cursory request for leave to amend if the court resolved the standing issue adversely to him, after the court ruled on the summary judgment motion without addressing the motion to amend, O’Reilly failed to seek leave to amend or to otherwise bring the matter to the court’s attention; rather, it moved for a new trial on the basis that there was newly discovered evidence and on the ground that there was a triable issue of fact as to the existence of a joint venture between RTI and O’Reilly. We may infer from his actions that O’Reilly made a tactical decision to abandon seeking leave to amend. “Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error. [Citation.]” (Telles Transport, Inc. v. W.C.A.B. (2001) 92 Cal.App.4th 1159, 1167.) It is thus apparent that O’Reilly failed to preserve any challenge to the trial court’s failure to grant leave to amend.
Even were we to conclude that the issue of forfeiture of the challenge is uncertain (see People v. Hernandez (2003) 30 Cal.4th 835, 863 [court may consider issue, where question of whether it was preserved for review is “close and difficult”]), we would nonetheless reject O’Reilly’s claim of error. O’Reilly’s proposed amendment was that RTI-a corporation that had had its corporate powers, rights, and privileges suspended in October 1995-be allowed to substitute as a plaintiff. A corporation that has had its powers, rights, and privileges suspended by the California Franchise Tax Board may not bring suit or defend a lawsuit on its behalf. (Kaufman & Broad Communities, Inc v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 217-218.) Thus, granting leave to amend to permit the substitution of RTI as a plaintiff would have been an idle act, since RTI would have been unable to maintain the suit. Therefore, to the extent the court’s failure to act on O’Reilly’s motion to amend may be construed as a denial of that motion, the court did not abuse its discretion in so doing. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 652 [denial of leave to amend in connection with summary judgment motion properly denied where proposed new cause of action was without merit]; Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44 [denial of leave to amend was not abuse of discretion where movant could not show viability of new claims].)
O’Reilly argues that the court nonetheless should have granted leave to amend because a suspended corporation may carry on litigation if it pays its taxes and obtains a certificate of reviver. (Kaufman & Broad Communities, Inc v. Performance Plastering, Inc., supra, 136 Cal.App.4th at p. 218.) There is nothing in the record to suggest that RTI had paid its taxes, obtained a certificate of reviver, or that O’Reilly advised the court of any specific plans RTI had to address its status (pending for nearly 15 years) as a suspended corporation. Under these circumstances, the court was not compelled to grant an amendment to permit RTI to be named as a plaintiff upon the mere speculation that it would somehow thereafter cure its legal disability in order to pursue litigation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.