Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC354761, Ricardo A. Torres, Judge. Affirmed.
Fonda & Fraser, Michael A. O’Flaherty and Daniel K. Dik for Plaintiffs and Appellants.
Haney, Buchanan & Patterson, Steven H. Haney and J. Adrian Zamora for Defendants and Respondents.
WILLHITE, J.
INTRODUCTION
Plaintiffs Lerna Amiryans and Michael Ziegeler appeal from a judgment following the granting of nonsuit in favor of defendants and respondents SoCal Sports Clubs, Inc., and Shahram Tamjidi. Plaintiffs were employed by Bodies In Motion, Inc., which was founded and owned by Bruce Gordon. They filed the present lawsuit, claiming unpaid wages and wrongful discharge in violation of public policy, among other claims. Plaintiffs also named as defendants SoCal Sports Clubs and Tamjidi, contending that they had entered into a joint venture with plaintiffs’ employer, such that the former were also subject to liability for the withheld wages and wrongful discharge. Both Bodies in Motion, Inc. and Gordon declared bankruptcy before the matter was tried, and therefore were not involved in the trial of the matter. After plaintiffs presented their evidence at trial, SoCal Sports Clubs, Inc. and Tamjidi moved for nonsuit, arguing that plaintiffs had not presented evidence that a joint venture existed, and therefore defendants could not be held liable for the employment-related claims. The trial court granted nonsuit and entered judgment in favor of defendants. We conclude the grant of nonsuit was correct, and therefore affirm the judgment in favor of defendants and respondents.
BIM and Gordon are not parties to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Amiryans and Ziegeler were employed as general managers by defendants Bodies In Motion, Inc. (BIM), and its founder and sole owner, Bruce Gordon. In April 2006, plaintiffs informed BIM that Ziegeler had recently filed, and that Amiryans planned to file, a lawsuit in superior court alleging wage and hour violations by BIM, claiming that they were owed compensation for overtime hours they had worked. Plaintiffs alleged in their complaint in the matter now before us that, shortly thereafter, in May 2006, their employment with BIM was constructively terminated in retaliation for their having filed suit. Plaintiffs further alleged that shortly before they were terminated, BIM entered into a joint venture with defendant and respondent, SoCal Sports Clubs, Inc. (SCSC) to operate the BIM clubs. A principal of SCSC, defendant and respondent Shahram Tamjidi (also referred to as Shawn Tamjidi), joined BIM for a brief period of time as a district manager, and was the one who carried out the plaintiffs’ constructive terminations.
Plaintiffs’ complaint, filed in June 2006, stated causes of action for (1) unpaid wages pursuant to various provisions of the California Labor Code, (2) unfair business practices (Bus. & Prof. Code, § 17200, et seq.), (3) constructive discharge in violation of public policy, and (4) breach of employment contract. Plaintiffs named as defendants BIM, Gordon, SCSC, and Tamjidi.
BIM’s Bankruptcy, and Dismissal of the Matter as to BIM and Gordon
BIM filed for Chapter 11 bankruptcy in or around August 2006. Gordon filed for Chapter 7 bankruptcy in September 2007. Accordingly, the matter was stayed as to BIM and Gordon. Plaintiffs were each paid $10,000 in settlement of their claims for wage violations and wrongful discharge with the bankruptcy trustee, BIM Liquidating Company. In July 2007, plaintiffs dismissed their claims against BIM and all related entities, including Gordon.
The Evidence Presented at Trial
The matter proceeded to a jury trial with SCSC and Tamjidi as the only remaining defendants. Plaintiffs presented the following testimony at trial.
Amiryans’s Testimony
Amiryans testified that she began working for BIM in April 2005, first in the club in Encino, and then in the Pasadena club. She lived in Glendale. On May 22, 2006, Sheila King, the director of human resources for BIM, spoke to Amiryans and asked if there was anything that could be done to persuade Amiryans to drop her lawsuit, as it would not be good for her career or for the company. Amiryans said that anything regarding the lawsuit had to be done through her attorney.
Amiryans understood as of May 2006 that BIM and SCSC were merging. SCSC’s involvement with BIM began in late April or early May 2006. Amiryans received a memorandum that indicated Tamjidi was going to be the new vice president in charge of all five BIM clubs. She believed he also held the title of either district manager or chief operating officer of BIM. She understood he had the power to fire or transfer her, although she did not know whether Tamjidi had to have Gordon’s approval to do so. Karen Klaess, the district manager and acting chief operating officer of BIM, said “Tamjidi had the ultimate say above and beyond” Gordon as to who would be terminated.
On or around May 22, 2006, Amiryans met with Tamjidi at a BIM club, purportedly to reinterview for her position, but they also talked about the lawsuit. He said he only wanted team players, and said he did not think she was one. He told her she could go ahead and sue because it was not going to come out of his pocket. Tamjidi later telephoned her and said she was being terminated as general manager of the Pasadena club, but if she liked, she could be a sales counselor (an entry-level position) at the SCSC facility in Carpinteria. She declined.
Tamjidi testified that Amiryans would have become an employee of SCSC if she had accepted the position. At the time he spoke to Amiryans, Tamjidi did not consider SCSC and BIM to have already merged. When asked what authority he had to order a BIM employee to work at an SCSC facility if the companies had not yet merged, Tamjidi responded that he was told by Gordon that Amiryans’s services were not needed at the Pasadena location, and it was fine if SCSC wanted to hire her to work at an SCSC club.
Amiryans stated that her paychecks always came from BIM. She did not know for a fact that SCSC purchased BIM. Rather, she later learned that BIM was acquired instead by a corporation called Meridian.
Ziegeler’s Testimony
Ziegeler stated that in May 2004, Tamjidi had been district vice president of BIM, and had recruited Ziegeler to work for BIM. Ziegeler worked as a sales manager at various BIM clubs, and then in June 2005 he became general manager at the Northridge location. Ziegeler stated that Tamjidi left BIM at some point, but then returned in May 2006, although he was employed by SCSC rather than BIM at that time. Ziegeler understood that BIM and SCSC were going to merge, and that Tamjidi had replaced Klaess as district vice president.
In May 2006, Tamjidi met with Ziegeler and outlined his vision for where he wanted to take the company. Tamjidi told him that SCSC was “taking over” and there would be “a lot of growth” and opportunity. He implied that if Ziegeler dropped the lawsuit he could move up into upper management. Tamjidi also told Ziegeler that he could sue Gordon for whatever he wanted because even if Ziegeler prevailed, the money would not come out of Tamjidi’s pocket. However, a day or two later Tamjidi telephoned Ziegeler and told him his services as a manager were no longer needed, but offered him a position as a sales counselor at the Irvine location. Because Ziegeler lived in Northridge, he asked if he could work in Encino or Northridge instead, but Tamjidi said the only opportunity for him was in Irvine. Ziegeler thought the offer was unreasonable, and declined. He presumed that this employment decision was made because of the lawsuit for overtime wages that he had initiated against BIM.
Ziegeler took as indications of the merger between BIM and SCSC the fact that Amiryans was offered a position at an SCSC facility in Carpinteria, and the fact that the Westside locations of BIM and SCSC were allowing their members to interchange their memberships without upgrading. He “assumed that Shawn Tamjidi could pretty much do anything he wanted” as district vice president. However, Ziegeler agreed that Gordon owned BIM, and that Tamjidi did not say he had an ownership interest in BIM. Ziegeler knew BIM was in financial trouble and was told SCSC “had deep pockets and they were coming to the rescue”; they were going to open new clubs and there would be opportunity and “big bucks for everybody.” Ziegeler’s paychecks were always issued by BIM. He agreed that his employer was at all times BIM.
Tamjidi’s Testimony
Tamjidi testified that, for about two weeks during May 2006, he took over the responsibilities of district manager for all BIM clubs, replacing Klaess. He described himself as a consultant for BIM, and also as a vice president of BIM. Tamjidi said that reducing overhead expenses was not his responsibility at BIM, but improving income by increasing membership and sales was part of his job. BIM paid him about $5,000 for the 13 days he worked in that capacity. He remained a principal of SCSC during that time.
Tamjidi testified that SCSC made a payment of $250,000 to BIM as a fully refundable deposit while SCSC conducted its due diligence to investigate whether to merge with BIM. Tamjidi did not know whether BIM spent any of that money, or how it was spent if it did so. After conducting its due diligence, SCSC decided not to merge with BIM. SCSC did not get its deposit back because BIM filed for bankruptcy shortly thereafter.
Wittenbrock’s Testimony
Alvin Wittenbrock was the general manager of the Pasadena BIM club in April 1998. The following year, he became chief operations officer of BIM. In September 2005, his position changed to district sales manager or district general manager of the Pasadena, Northridge, and Encino BIM clubs. In February 2006, Wittenbrock left BIM and began working for Meridian Sports Clubs. He was told at that time by the owner of Meridian that there was a 95 percent chance that Meridian would be acquiring BIM, so he decided to work at Meridian’s Fullerton club; he described the change in position as “sort of like a transfer rather than a resignation or a termination.” Wittenbrock testified that in May 2006 Tamjidi said that he was “in charge of” and “running BIM now and asked me if I was interested in employment with him because he was operating both companies.” Tamjidi said he was working for both BIM and SCSC, at the same time. Wittenbrock said that while he worked at BIM, Bruce Gordon was the only person who held the title of chief executive officer, and no one else held an ownership interest in BIM.
An employee of BIM sent Wittenbrock an e-mail sent by Gordon to “D. Moore” and others, dated May 22, 2006, with the subject line “merger and progress changes.” The message stated as follows: “As a necessity of this merger with Southern California Sports Club, several positions have been eliminated or consolidated so that those duties will be absorbed by other BIM Southern California staff. Effective immediately Shawn Tamjidi will take over the responsibilities of district manager for all BIM clubs and replace Karen Klaess in this capacity. To insure a smooth transition, Karen will be available and will assist Shawn through the end of the month. Also effective immediately Shawn will be aided by Mike Fonaseer and Peter Petrof for club and PT operations respectively company wide. This is a very exciting time to be part of BIM, with nothing but great things ahead for those that chose to help BIM grow. Thank you for continued hard work and support. Very truly yours, Bruce Gordon.”
Tamjidi said Douglas Moore was his “partner” during the time SCSC was in operation.
BIM was eventually purchased by Meridian, after BIM declared bankruptcy. Wittenbrock stated that Tamjidi tried to buy BIM at auction in the bankruptcy matter.
The Motion for Nonsuit
At the close of plaintiffs’ case in chief, defense counsel moved for nonsuit on the basis that SCSC and Tamjidi, the only remaining defendants, were not plaintiffs’ employer, and that the evidence was insufficient to sustain a finding that there was a joint venture between the remaining defendants on the one hand and BIM and/or Gordon on the other, in order to create liability. Defendants asserted that the evidence demonstrated BIM and Gordon were plaintiffs’ sole employers.
Plaintiffs’ counsel argued that Tamjidi was personally liable for wrongful termination in violation of public policy as a principal of SCSC, and that SCSC was liable as plaintiffs’ employer because there existed a joint venture between it and BIM.
The Ruling
After appellants presented their evidence, the court stated that it had not seen evidence of a joint venture, but only that SCSC had paid $250,000 for a right of first refusal to purchase BIM, and then did not complete the purchase. The evidence was that Tamjidi reported to Gordon at all times. The court initially indicated that it might permit the case to proceed against SCSC, but not Tamjidi individually, stating that it might be implied that the two companies were sharing profits and losses as they considered merging, such that SCSC could be regarded as plaintiffs’ employer.
However, after further consideration of the evidence and the applicable case law, the court concluded that there was evidence of a merger in progress, but there was no evidence of there ever being a joint venture, and therefore there was no issue to submit to the jury. Gordon’s e-mail of May 22, 2006 pointed out that Tamjidi was an employee of BIM, and implied that he did not have equal power with Gordon. There was no evidence that Tamjidi or SCSC had control of BIM, nor that Tamjidi or SCSC had any rights to share BIM’s profits or losses. “The mere fact that one is to receive benefits in consideration of services rendered or for capital contributions does not, as a matter of law, make him a partner or joint venture[r].” The court stated that only an employer can be held liable for discharge in violation of public policy, and here plaintiffs were employed by BIM, not SCSC or Tamjidi. SCSC and Tamjidi were thus legally incapable of committing retaliation. Accordingly, the court granted nonsuit in favor of defendants as to all causes of action.
This appeal followed.
DISCUSSION
I. The Availability of Nonsuit, and the Standard of Review
On a motion for nonsuit, “‘the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled,... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor....”’ [Citations.] [¶] In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839.)
“‘The rules governing the granting of a nonsuit, however, do not relieve the plaintiff of the burden of establishing the elements of his case. The plaintiff must therefore produce evidence which supports a logical inference in his favor and which does more than merely permit speculation or conjecture. [Citation.] If a plaintiff produces no substantial evidence of liability or proximate cause then the granting of a nonsuit is proper. [Citation.]’ (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1209.)
II. Defendants’ Liability Was Dependent on the Existence of a Joint Venture Between BIM and SCSC
The causes of action asserted by plaintiffs included violations of the wage and hour laws, unfair business practices, constructive discharge in violation of public policy, and breach of employment contract. As we explain in this portion of the discussion, liability for each of these causes of action depended upon the existence of an employment relationship between plaintiffs and defendants SCSC and Tamjidi.
A. Labor Code Wage and Hour Violations
Amiryans and Ziegeler alleged that defendants violated numerous provisions of the California Labor Code by failing to pay them the wages they were due, including overtime compensation because, given their duties, they should have been classified as non-exempt employees for purposes of the applicable wage and hour laws. The wage and hour laws set forth in the Labor Code, including each of the sections cited by plaintiffs, presuppose the existence of an employment relationship. To wit, the cited sections contain the word “employer” or “employee,” and must be understood to impose obligations on an “employer.” (See Reynolds v. Bement (2005) 36 Cal.4th 1075, 1085-1086 (Reynolds); Bradstreet v. Wong (2008) 161 Cal.App.4th 1440, 1451-1454 (Bradstreet).)
The specific sections of the Labor Code cited by plaintiffs are 200, 201, 203, 204, 210, 216, 218, 218.5 [attorney fees], 218.6 [interest], 221, 222, 223, 227.3, and 510.
Labor Code sections 218.5 and 218.6, which provide for attorney fees and an award of interest to the prevailing party, respectively, do not contain the words “employer” or “employee.” However, they also presume the existence of an employment relationship in providing for recovery of attorney fees and interest based upon a successful action brought by or on behalf of an employee. Section 216 provides for imposition of a criminal misdemeanor penalty for violations of provisions of the article in which it is contained.
Furthermore, case law has made clear that for purposes of actions for wage and hour violations under the Labor Code, including actions for overtime compensation, so-called “corporate control” figures (i.e., individuals who exercise control over the wages, hours, or working conditions of other persons), like corporate agents acting within the scope of their agency under common law, are not personally liable for the corporate employer’s failure to pay their corporate employees’ wages. (Reynolds, supra, 36 Cal.4th at pp. 1085-1088; Bradstreet, supra, 161 Cal.App.4th at pp. 1451-1454.)
B. Unfair Business Practices
Plaintiffs also alleged that defendants, including Tamjidi and SCSC, committed unfair business practices, in violation of Business and Professions Code section 17200, et seq., by wrongfully withholding wages and encouraging and fostering “acts of physical and financial intimidation.” An employee may recover payment of unlawfully withheld wages as a restitutionary remedy under the Unfair Competition Law, (Reynolds, supra, 36 Cal.4th at p. 1085), but the obligation to pay wages is imposed upon employers. “‘The employer has acquired the money to be paid by means of an unlawful practice that constitutes unfair competition as defined by [Business and Professions Code] section 17200. The employee is, quite obviously, a “person in interest” [citation] to whom that money may be restored. The concept of restoration or restitution, as used in the UCL, is not limited only to the return of money or property that was once in the possession of that person.... [E]arned wages that are due and payable pursuant to section 200 et seq. of the Labor Code are as much the property of the employee who has given his or her labor to the employer in exchange for that property as is property a person surrenders through unfair business practice.’” (Bradstreet, supra, 161 Cal.App.4th at p. 1459, quoting Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 177-178.) Plaintiffs did not contend that SCSC was their employer, except to the extent a joint venture existed between SCSC and their undisputed employer, BIM.
In addition, even assuming for purposes of the motion for nonsuit that Tamjidi was an agent or officer of BIM, in the absence of any evidence or even argument that plaintiffs performed labor for Tamjidi personally, rather than for the benefit of BIM, or that Tamjidi appropriated for himself corporate funds that otherwise would have been used to pay the purportedly unpaid wages, Tamjidi could not be required to pay the unpaid wages as restitution. (Bradstreet, supra, at pp. 1460-1461.) Only BIM, not its officers or managers, owed the earned wages. (Id. at p. 1461.)
Thus, liability under the Unfair Competition Law could be imposed only upon SCSC, and only if SCSC could be construed to be plaintiffs’ employer by virtue of a joint venture between it and BIM.
C. Constructive Discharge in Violation of Public Policy
Amiryans and Ziegeler further alleged that SCSC and Tamjidi, as well as BIM and Gordon, were subject to liability for the tort of constructive discharge in violation of public policy. Specifically, plaintiffs asserted that they were constructively discharged in retaliation for acting as whistle blowers with regard to defendants’ purported violations of state workers’ compensation laws, and also in retaliation for asserting their right to be paid overtime compensation.
However, the California Supreme Court has unambiguously held that “a Tameny action for wrongful discharge can only be asserted against an employer. An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort. This conclusion flows logically from our reasoning in Tameny.
See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [action for discharge in violation of public policy].
“The tort we recognized in Tameny, and reaffirmed in Gantt, is premised on the wrongful termination of an employment relationship. If an employer terminates an employment relationship for a reason that contravenes some fundamental public policy, then the employer breaches a general duty imposed by law upon all employers and the employee’s remedy therefore sounds in tort. (Tameny, supra, 27 Cal.3d at p. 176.) In that case, the various terms of the employment relationship are not the source of the employee’s legal rights; rather, tort law is the source of the employee’s legal rights, and the employment relationship is merely the medium through which the tort is inflicted. (Ibid.) Nevertheless, the breach of the employment relationship is an indispensable element of the tort, because it serves factually as the instrument of injury. Thus, there can be no Tameny cause of action without the prior existence of an employment relationship between the parties.
Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083.
“This point was elaborated upon by the Court of Appeal in Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal.App.4th 1310: ‘[T]he tort of wrongful discharge in violation of public policy... arises when an employer conditions employment upon required participation in unlawful conduct by the employee. But the fact that an employee discharged in violation of public policy has a tort remedy wholly independent of his express or implied contractual relationship with his employer [citation] does not mean there exists a tort of “wrongful termination in violation of public policy” independent of the duty arising from the employment relationship. To the contrary, the duty on which the tort is based is a creature of the employer-employee relationship, and the breach of that duty is the employer’s improper discharge of an employee otherwise terminable at the will or whim of the employer. [Citation.] There is nothing in... any... case we have found to suggest that this tort imposes a duty of any kind on anyone other than the employer. Certainly, there is no law we know of to support the notion that anyone other than the employer can discharge an employee.’ (Id. at p. 1315, italics omitted and added.)” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900-901 (Miklosy).)
In addition, the Supreme Court made clear that “[personal liability cannot be imposed upon] supervisorial employees based on a common law tort that depends on the existence of an employer-employee relationship between the tortfeasor and the victim.” (Miklosy, supra, 44 Cal.4th at p. 901.) Therefore, Tamjidi was not subject to liability for carrying out the constructive discharges in his role as an agent or officer of BIM. The Miklosy court explained further: “The supervisor, when taking retaliatory action against the employee, is necessarily exercising authority the employer conferred on the supervisor, and it is only that authority that makes the supervisor’s action injurious, not the action in itself. The words ‘You are fired,’ for example, have no legal significance if spoken by a junior-level employee who has no role in hiring and firing decisions; it is only when the speaker is in a position to exercise authority on behalf of the employer that these words have significance. Thus, in a retaliation case, it is the employer’s adverse employment action that constitutes the substance of the tort, and the supervisor’s action merges with that of the employer. We could only hold that the supervisor commits an independent tort if the supervisor’s action were somehow by itself injurious, irrespective of the adverse employment action it causes the employer to take, but that is not alleged here.” (Id. at p. 901, fn. 8.) As in Miklosy, the plaintiffs here did not allege or demonstrate that Tamjidi’s actions were by themselves injurious, irrespective of the adverse employment action he carried out on behalf of BIM.
Thus, liability could only be imposed against defendant SCSC based upon the theory that SCSC was plaintiffs’ employer by virtue of a joint venture having existed between BIM and SCSC.
D. Breach of Employment Contract
Finally, plaintiffs alleged that defendants, including SCSC and Tamjidi, breached their employment contract with plaintiffs by failing to pay wages, commissions, bonuses, and overtime wages when due, and further breached the implied covenant of good faith and fair dealing. Plaintiffs did not allege that SCSC was a direct party to their employment contract. Rather, plaintiffs’ contract claims relied on there being a joint venture between BIM and SCSC, in that “each of the defendants... was the agent, employer or co-joint venturer of the other defendants,” and therefore “a unity of interest and ownership among and between the defendants” existed, “to such an extent that any individuality or separateness of the defendants does not, and did not, exist.”
III. No Evidence Was Presented of a Joint Venture
The Legal Standard
BIM was undisputedly plaintiffs’ employer, but the plaintiffs settled the matter with BIM’s bankruptcy trustee as to BIM and Gordon, leaving only SCSC and Tamjidi as defendants at trial. Plaintiffs assert that they presented evidence at trial that an employment relationship existed between them and SCSC by virtue of there being a joint venture between SCSC and BIM. We disagree, and conclude that plaintiffs’ evidence did not support the existence of a joint venture.
“‘A joint venture... is an undertaking by two or more persons jointly to carry out a single business enterprise for profit.’ [Citation.] The elements necessary for its creation are: (1) joint interest in a common business; (2) with an understanding to share profits and losses; and (3) a right to joint control. [Citations.]” (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 819.)
As the trial court recognized here: “‘An essential element of a partnership or joint venture is the right of joint participation in the management and control of the business. [Citation.] Absent such right, the mere fact that one party is to receive benefits in consideration of services rendered or for capital contribution does not, as a matter of law, make him a partner or joint venturer. [Citations.]’” (Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 586, quoting Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 364 [agreement by landowner to share with another profits to be derived from sale of land does not, without more, create partnership or joint venture relationship].)
The Evidence
Plaintiffs contend on appeal that they presented ample evidence from which a fact finder could infer that there was a joint venture between BIM and SCSC during May 2006, when they were constructively terminated.
The evidence showed that BIM and SCSC briefly explored the possibility of a merger, but did not establish a joint venture while doing so. It is undisputed that the two companies never completed the merger. The evidence regarding the merger was as follows: Amiryans said she was told at a corporate meeting that BIM and SCSC were merging; she also testified she was told the companies had merged. Ziegeler understood that BIM and SCSC were going to merge. Gordon, the owner of BIM, acknowledged the proposed merger in an e-mail message in May 2006, in which he stated that “[a]s a necessity of this merger with Southern California Sports Club, several positions have been eliminated.” None of this evidence established that a merger was accomplished, including Amiryans’ testimony; plaintiffs do not dispute that the merger did not occur. The parties agree that BIM was eventually purchased by Meridian, after BIM declared bankruptcy. In fact, plaintiffs’ witness, Wittenbrock, testified that he left BIM and went to work for Meridian in February 2006 (just three months prior to the plaintiffs’ termination) because he was told there was a strong likelihood, almost a certainty, that BIM would be acquired by Meridian.
Plaintiffs also point to the fact that Tamjidi carried out their terminations while he was district manager of BIM and overseeing all BIM clubs, while at the same time he was a principal, president, and owner/partner of SCSC. They argue that it can be inferred that he exercised a right to joint control along with Gordon. However, Amiryans said she did not know whether Tamjidi had to have Gordon’s approval to terminate her employment. Ziegeler “assumed that Shawn Tamjidi could pretty much do anything he wanted” as district vice president, but Ziegeler also agreed that Gordon owned BIM, and that Tamjidi did not say he had an ownership interest in BIM. Wittenbrock merely said that Tamjidi told him in May 2006 that he was “in charge of” and “running BIM,” and “was operating both companies.” Tamjidi was paid $5,000 for his two weeks of service to BIM, and described himself as a consultant for and a vice president of BIM.
In short, the assertion that Tamjidi exercised joint control over BIM, on an equal footing with Gordon, amounted to mere speculation. He was undoubtedly placed in a supervisorial capacity and given authority by BIM to make and carry out management decisions. But that is not tantamount to having joint control, such that a joint venture can be said to exist. Tamjidi stated that, while he was offering his opinions as a consultant to Gordon, the ultimate authority remained with Gordon. In contrast, the plaintiffs offered mere conjecture regarding the scope of his authority.
There was no evidence that the two entities shared profits and losses. Indeed, both plaintiffs testified that Tamjidi said any money they recovered in their lawsuit for unpaid wages would not come out of his pocket. It was undisputed that SCSC paid BIM $250,000. Tamjidi testified the money was a refundable deposit that SCSC made to enable it to conduct a due diligence analysis of BIM, in order to determine whether to merge the two companies. Plaintiffs assert that the money could have been used as operating capital, but they offered no evidence to prove that.
Ziegeler testified that he understood that while the merger was being considered, the Westside locations of BIM and SCSC were allowing their members to interchange their memberships without upgrading. This fact also does not establish the existence of a joint venture, and certainly not a joint venture which would give rise to the legal conclusion that SCSC could be deemed to be Amiryans’ and Ziegeler’s employer. While BIM’s and SCSC’s members briefly enjoyed the benefit of being allowed to use an additional club, there is no evidence that the two clubs shared profits and losses from their Westside locations, nor that the two clubs were under joint control.
Finally, plaintiffs rely heavily on the fact that Tamjidi terminated Amiryans’ employment at BIM, and offered her an entry-level position at an SCSC club, thus treating her as “a fungible joint employee.” However, Tamjidi said Gordon confirmed Amiryans’ managerial services were no longer needed at BIM, and said that Tamjidi could offer her a position at SCSC. No inference of a joint venture can be said to arise based on the fact Tamjidi removed Amiryans as a manager at a BIM club and offered her employment at an SCSC club in Carpinteria. Tamjidi testified that Amiryans would have become an employee of SCSC if she had accepted the position, and plaintiffs did not dispute that fact. Plaintiffs both understood that the Carpinteria club was an SCSC facility, although they took this fact as evidence of there being an imminent merger. There of course was no merger.
In summary, even accepting as true the evidence most favorable to plaintiffs, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs’ favor (Carson v. Facilities Development Co., supra, 36 Cal.3d at pp. 838-839), we conclude that the plaintiffs failed to produce evidence of there being a joint venture between SCSC and BIM, such that SCSC could be said to be their employer and therefore subject to liability for plaintiffs’ claims. BIM was their sole employer at all times. Accordingly, we find that the trial court correctly granted nonsuit in favor of SCSC and BIM.
IV. Plaintiffs’ Request for Judicial Notice Regarding SCSC’s Lapse in Corporate Status
We need only briefly address the request made by plaintiffs in their opening brief that we take judicial notice of the online records of the California Secretary of State, “California Business Portal,” which apparently indicate that no corporation by the name of SoCal Sports Clubs is listed. Plaintiffs assert that this shows that SCSC’s corporate status has been “suspended.” Plaintiffs further contend that Tamjidi is subject to personal liability because he there is no corporate entity for him to “hide behind.”
We deny the request for judicial notice. First, plaintiffs did not present the evidence in the trial court, and it is thus irrelevant in determining whether the trial court properly granted a nonsuit. Second, the mere absence of a corporate listing for SCSC would not demonstrate that its corporate status was “suspended” in the sense that it failed to pay state franchise taxes (Rev. & Tax. Code, § 23301), such that its ability to benefit from California laws or invoke the powers of the California judicial system would be suspended. (See Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1366, 1367.) For instance, “a ‘California corporation may dissolve by following the procedure set forth in the Corporations Code. After it has dissolved, a corporation, although no longer permitted to do business as a going concern, continues to exist for purposes of winding up its affairs and, in particular, for discharging obligations and defending lawsuits.’” (Catalina Investments, Inc. v. Jones (2002) 98 Cal.App.4th 1, 7; quoting Penasquitos, Inc. v. Superior Court (1991) 53 Cal.3d 1180, 1183.)
Plaintiffs assert, without further explanation, that “[t]he closest entities found will be a corporation that was suspended and a dissolved [limited liability corporation].”
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants and respondents.
We concur: EPSTEIN, P. J., SUZUKAWA, J.