Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from a judgment and orders of the Superior Court of Los Angeles County. Joanne O’Donnell, Judge, Super. Ct. No. BC 285134
Snell & Wilmer, Richard A. Derevan and Marc L. Turman for Plaintiff and Appellant.
Morgan, Lewis & Bockius, James N. Penrod, David J. Brown, Thomas M. Peterson and Laura J. Remington for Defendant and Respondent Greg Daily.
Mitchell Silberberg & Knupp, Hayward J. Kaiser, Steven M. Schneider and Richard B. Sheldon for Defendant and Appellant U.S. Bancorp.
ROTHSCHILD, J.
Auerbach Acquisition Associates, Inc. sued both U.S. Bancorp (USB) and Greg Daily for breach of contract, fraud, interference with contractual relations, and interference with prospective economic advantage. Auerbach sought to hold USB vicariously liable for Daily’s conduct on the ground that USB is the successor to NOVA Corporation, of which Daily was allegedly an agent. The trial court entered judgment in favor of USB on all of Auerbach’s claims. We affirm because the record contains no evidence that Daily was NOVA’s agent.
BACKGROUND
Auerbach is a California corporation based in Los Angeles. Douglas Shooker is Auerbach’s sole officer and director.
Before September 1998, Daily was an executive of PMT Services, Inc., a credit card processing business. In approximately September 1998, PMT merged with NOVA, another credit card processing business. PMT thereby became a wholly owned subsidiary of NOVA. Following the merger, Daily continued to serve as PMT’s president but also became a member and vice chairman of NOVA’s board of directors. At all relevant times, Edward Grzedzinski was NOVA’s president and chief executive officer and was a member and the chairman of NOVA’s board of directors. USB acquired NOVA in July 2001.
The employment agreement between NOVA and Daily, pursuant to which Daily served as both a member and a vice chairman of NOVA’s board and as president of PMT, included a noncompetition agreement, which precluded Daily from investing in other credit card processing businesses. The employment agreement terminated on December 31, 1998, pursuant to a written separation agreement executed by Daily and NOVA. The separation agreement provided, however, that Daily would remain subject to a noncompetition agreement for two years after termination of the employment agreement. The separation agreement also left intact Daily’s position on NOVA’s board.
In June 1999, Daily wrote to Grzedzinski to request an exception to Daily’s noncompetition agreement so that he could invest in two credit card processing businesses, one of which was then known as Creditcards.com but subsequently changed its name to iPayment Technologies, Inc. (For convenience, we will refer to it exclusively as iPayment.) In his letter, Daily suggested that if iPayment and the other company he wanted to invest in “get their feet under them, they may one day be acquisition candidates for NOVA. If this is something NOVA is interested in, we could discuss the possibility of these companies granting NOVA a right of first refusal on their sale. With this concept in mind, if it is agreeable to the Board, I may even take a more active role in preparing the companies to be sold to NOVA. We can further discuss these types of possibilities.”
NOVA’s board considered and denied Daily’s request at its regular meeting in August 1999. There is no evidence that Daily thereafter engaged in any discussions with anyone else at NOVA concerning the “types of possibilities” described in his letter.
Later in 1999, Grzedzinski confronted Daily concerning a rumor that Daily had already invested in iPayment before seeking, and failing to obtain, NOVA’s board’s permission. Daily acknowledged that the rumor was true. Grzedzinski told Daily that he had to divest himself of his interest in iPayment, and Daily agreed that he would do so. On December 26, 1999, Daily certified to NOVA in writing that he had “disposed of any and all interest in the investment [he] previously held in [iPayment].”
In January and April 2000, Auerbach and iPayment entered into a series of agreements concerning a potential investment by Auerbach in iPayment.
By referring to them as “agreements,” we do not intend to be expressing any opinion on their enforceability.
Daily and Shooker (Auerbach’s sole officer and director) first met in the summer of 2000 and began discussing ways that they could work together in the credit card processing industry. Auerbach alleges that Daily, purportedly acting on behalf of NOVA, entered into an oral agreement with Auerbach pursuant to which (1) Auerbach and “Daily/NOVA” would discuss ways of working together in the credit card processing industry, (2) Auerbach would disclose certain confidential and proprietary information to “Daily/NOVA,” (3) “Daily/NOVA” would keep the information confidential, and (4) “prior to May 2001, Daily/NOVA would not pursue any transaction involving iPayment unless such transaction was on terms acceptable to [Auerbach].”
According to Auerbach, Daily then managed to install a friend of his named Carl Grimstad as president of iPayment. Daily and Grimstad then thwarted Auerbach’s attempts to invest in iPayment pursuant to the April 2000 agreements, so that Daily could obtain a controlling interest in iPayment himself.
Auerbach filed suit against USB, Daily, and Adam Bullock (an Arthur Andersen accountant who allegedly conspired with Daily to facilitate the breach of Auerbach’s agreements with iPayment). The operative first amended complaint alleges claims for breach of contract, fraud, interference with contractual relations, and interference with prospective economic advantage.
Auerbach has dismissed with prejudice its claims against Bullock.
On June 4, 2004, USB moved for summary judgment on the ground that Daily was not NOVA’s agent. The trial court denied the motion, concluding that “triable issues of material fact exist as to whether . . . Daily had either the actual or ostensible authority to develop[] [iPayment] on behalf of NOVA.”
Later, however, the trial court granted Daily’s motion for summary adjudication of the breach of contract claim on the ground that the alleged contract was fatally uncertain. USB again moved for summary judgment or summary adjudication on various grounds (not including lack of agency), and the trial court ultimately granted USB summary adjudication of each of Auerbach’s claims.
On July 22, 2005, the court entered judgment in favor of USB. Auerbach timely appealed. USB cross-appealed from both the judgment and certain prior adverse rulings on USB’s motions for summary judgment, summary adjudication, and judgment on the pleadings.
STANDARD OF REVIEW
We review the trial court’s ruling on a motion for summary judgment or summary adjudication de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60 [summary judgment]; Certain Underwriters of Lloyd’s at London v. Superior Court (2001) 24 Cal.4th 945, 972 [summary adjudication].)
DISCUSSION
I. The Judgment Must Be Affirmed Because Daily Was Not USB’s Agent
USB initially moved for summary judgment on the ground that Daily was not USB’s agent. The trial court denied USB’s motion. The court’s ruling on that motion is properly before us on Auerbach’s appeal, because nonappealable prejudgment orders are subject to appellate review in an appeal from the final judgment. (See, e.g., Jennings v. Marralle, supra, 8 Cal.4th at p. 128.) We conclude that the motion should have been granted, and we affirm the judgment on that basis. (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1 [“[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court.”].) We therefore need not address the parties’ other arguments concerning Auerbach’s causes of action.
“An agent is one who represents another, called the principal, in dealings with third persons.” (Civ. Code, § 2295.) “In California agency is either actual or ostensible. (Civ. Code, § 2298.) An agency is actual when the agent is really employed by the principal. (Civ. Code, § 2299.) An agency is ostensible when a principal causes a third person to believe another to be his agent, who is really not employed by him. (Civ. Code, § 2300.) [¶] An agent has the authority that the principal, actually or ostensibly, confers upon him. (Civ. Code, § 2315.) Actual authority is the authority the principal intentionally confers upon the agent or allows the agent to believe that he possesses. (Civ. Code, § 2316.) Ostensible authority, on the other hand, is the authority of the agent which the principal causes or allows a third person to believe that the agent possesses. (Civ. Code, § 2317.)” (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 905.)
In the trial court Auerbach contended that, under the “internal affairs doctrine,” Georgia law governs at least certain aspects of the alleged agency relationship between Daily and NOVA because NOVA was a Georgia corporation. Auerbach abandons that contention on appeal, and we will therefore join Auerbach in assuming that the only applicable law is California’s.
“An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification.” (Civ. Code, § 2307.) “Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.)
“The existence of an agency relationship is usually a question of fact, unless the evidence is susceptible of but a single inference.” (Violette v. Shoup (1993) 16 Cal.App.4th 611, 619.)
A. Actual Agency
Auerbach argues that it introduced sufficient evidence to create a disputed issue of fact concerning actual agency. We disagree.
1. Daily’s Status as Vice Chairman
Auerbach argues that under NOVA’s bylaws, Daily’s position as vice chairman of the board made Daily an officer of NOVA, and that Daily was therefore NOVA’s agent. We disagree. Daily’s position as vice chairman of the board did not make Daily an officer.
The relevant provision of the bylaws, section 6.1, states in part: “The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may include a Chairman of the Board, a Vice Chairman of the Board, one or more Executive Vice Presidents, Senior Vice Presidents and Vice Presidents, one or more Assistant Secretaries, and one or more Assistant Treasurers. The officers shall be elected by the Board of Directors at the first meeting of the Board of Directors after the annual meeting of the shareholders in each year or shall be appointed as provided in these bylaws. The Board of Directors may elect other officers, agents and employees, who shall have such authority and perform such duties as may be prescribed by the Board of Directors. All officers shall hold office until the meeting of the Board of Directors following the next annual meeting of the shareholders after their election or appointment and until their successors shall have been elected or appointed and shall have qualified.” Under that provision, the board appoints or elects all of the officers of NOVA. The record contains the minutes of the meetings of the board in 1999 at which the board elected NOVA’s officers, and Daily was not among them. Auerbach introduced no evidence that NOVA’s board ever appointed or elected Daily an officer of NOVA.
Auerbach contends that because the bylaws state that the officers of NOVA “may include . . . a Vice Chairman of the Board,” Daily’s position as vice chairman of the board automatically made him an officer. According to Auerbach, that provision means that although NOVA need not appoint any vice chairmen, if it does appoint some, then they are officers of NOVA. We disagree. The provision means only that if NOVA’s board appoints any vice chairmen, then those vice chairmen may also be elected or appointed as officers—the officers “may include” vice chairmen. The undisputed facts remain that (1) under the bylaws, all of NOVA’s officers must be elected or appointed by the board, (2) the minutes of the board’s election of officers for 1999-2000 show that the board did not elect Daily as an officer, (3) those same minutes, which purport to list all of NOVA’s officers, never refer to “vice chairman of the board” as an officer position, and (4) there is no evidence that NOVA’s board elected or appointed Daily to be an officer of NOVA.
Auerbach points to the following additional features of the bylaws in support of its interpretation: (1) Section 6.1 is part of article VI of the bylaws, which is entitled “Officers, Agents and Employees;” (2) section 6.2 says that the powers of the chairman, vice chairman, and president “shall be those usually appertaining to their respective offices;” (3) section 6.3 provides that in the absence of the chairman, the vice chairman shall perform the duties of the chairman, and it is undisputed that Grzedzinski, NOVA’s chairman, was an officer; and (4) section 2.7 provides that, in the absence of the chairman, the vice chairman shall “preside” at shareholders’ meetings, and the title of section 2.7 uses the phrase “presiding officer.”
None of those considerations is persuasive, for the following reasons: (1) The inclusion of section 6.1 within the article concerning officers, agents, and employees makes sense given that some vice chairmen may be officers, but it does not mean that all vice chairmen automatically are officers; (2) in section 6.2, the word “offices” is used merely as a synonym for “positions;” (3) although it is indeed undisputed that Grzedzinski was an officer of NOVA, because the board elected him to be NOVA’s president and chief executive officer, there is no evidence that the board ever elected Daily to be an officer of NOVA; and (4) the phrase “presiding officer” in the title of section 2.7 means only “person who presides at a shareholders’ meeting,” and it may include a person who was appointed solely for that purpose and for only one meeting; the use of the phrase “presiding officer” in the title of section 2.7 thus does not mean that everyone who ever presides at a shareholders’ meeting (and thus serves as a “presiding officer”) thereby becomes an officer of NOVA.
Finally, Auerbach disputes USB’s contention that the title of “vice chairman” was “honorary, not substantive.” In a similar vein, Auerbach argues on various grounds that it is not true that “the Vice Chairman position [was] nothing more than a director spot.” The truth or falsehood of those contentions is of no consequence to our analysis. The “vice chairman” title certainly was not completely empty—it gave Daily the power and the duty to preside at shareholders’ and directors’ meetings in the absence of the chairman. But having that power and duty did not make Daily an officer, or otherwise make Daily an agent, of NOVA. Nor does Auerbach deny that Daily’s status as a director did not, by itself, make Daily an agent of NOVA. (See Scott v. Los Angeles Mountain Park Co. (1928) 92 Cal.App. 258, 264; see also 1 Marsh et al., Cal. Corporation Law (4th ed. 2006) § 10.14, p. 10-73 [“[A]n individual director by virtue merely of that office does not have power to bind the corporation.”]; 2 Fletcher Cyclopedia of the Law of Private Corporations (2006 rev. vol.), § 505, p. 581 [“A corporation does not act through its individual directors, but rather through its board of directors as a whole. An individual director has no authority to take action on behalf of the corporation without the consent of the board of directors.”].) What matters, then, is not whether the title “vice chairman” was “honorary” or “substantive,” but whether it made Daily an actual agent of NOVA. Auerbach has introduced no evidence that it did.
2. NOVA’s SEC Filings
Auerbach argues that NOVA’s forms 10-K for fiscal years 1998, 1999, and 2000 show that Daily was an officer of NOVA. We disagree.
The 1998 form 10-K lists Daily in the section entitled “Executive Officers of the Registrant,” but it states that he was president of PMT (a wholly owned subsidiary of NOVA), not of NOVA, and that even that position terminated on December 31, 1998. Auerbach argues that Daily must have been an officer of NOVA, because he is listed as an executive officer of “the Registrant,” namely, NOVA. But Auerbach fails to note that the form expressly provides that, unless the context otherwise requires, all references in the form to NOVA “refer to NOVA Corporation and its subsidiaries.” (Italics added.) It thus was appropriate to list Daily, although an officer of a subsidiary but not of NOVA itself, as an officer of “the Registrant.”
The 1999 and 2000 forms 10-K do not list Daily in the section entitled “Executive Officers of the Registrant.” Auerbach argues that those forms still show that Daily was an officer because he signed each of them as NOVA’s “Vice Chairman of the Board.” We disagree because we have already concluded that being vice chairman of NOVA’s board did not make Daily an officer of NOVA.
3. Daily’s Employment Contract
Auerbach points out that Daily’s 1998 employment contract provided that he would serve as vice chairman of NOVA’s board and president of PMT, and that any duties assigned to him would “be such duties as are customary for an officer in those positions . . . .” On that basis, Auerbach argues that the vice chairman position must have been an officer position, because the contract refers to an “officer in those positions,” in the plural. We are not persuaded. The contract provides that Daily was an officer of PMT, not of NOVA, and was also a director and vice chairman of the board of NOVA. Thus, he was an officer (of PMT) who held multiple positions (at PMT and NOVA), although not all of them were officer positions. The use of the plural shows only that Daily held multiple positions, not that all of them were officer positions.
4. Acting as an “Ambassador”
Auerbach argues that Grzedzinski’s deposition testimony shows that Daily was NOVA’s agent, because Grzedzinski asked Daily “to act as an ambassador with the PMT, what they called the PMT business partners.” When asked to explain what that meant, Grzedzinski answered, “To assist us from—from sort of an ambassador perspective in organizing and executing the integration of the business of all of the various PMT partners onto the NOVA platform and infrastructure.”
Grzedzinski’s testimony has no tendency to prove that Daily was NOVA’s agent. Immediately after the testimony quoted above, Grzedzinski was then asked whether there were “separate operating units at PMT,” to which he answered, “Yes.” He was then asked whether, in the “ambassador” conversation with Daily, he was “asking Greg Daily to interface with those operating units upon merger to assist in the transition,” and he again answered, “Yes.” Finally, he was asked whether that was what he meant by “ambassador,” and he again answered, “Yes.”
Read in context, then, the testimony cited by Auerbach shows only that Grzedzinski asked Daily to assist in integrating PMT’s operating units into NOVA following the merger. It does not show that Daily was NOVA’s agent, because it does not show that Daily had the authority to bind NOVA in dealings with third parties. Moreover, it shows nothing about Daily’s status in the summer of 2000, when he first met Shooker, because Grzedzinski could not recall the date on which the “ambassador” conversation took place.
5. Identifying “Acquisition Candidates”
Auerbach also relies on another portion of Grzedzinski’s deposition testimony, in which Grzedzinski described a conversation in which Daily said he “had some ideas around the notion of acquisition candidates and, you know, potentially some role he might play in that capacity.” When asked, “What did [Daily] tell you was the role he thought he might play in that capacity?”, Grzedzinski answered, “To identify opportunities.” Grzedzinski also confirmed that Daily said he was good at identifying opportunities, and that “everybody knew” that anyway. Daily did not tell Grzedzinski “specifically” what he “was going to do in pursuit of the role of identifying potential acquisition candidates,” but he did say “generally” that he would “continue[] to attend industry conferences and meetings and so forth[.]” By doing so, Daily, who was already “very well connected in the . . . industry,” would put himself in a position to spot good acquisition opportunities, perhaps over “golf or dinner.”
None of that testimony has any tendency to show that Daily had the authority to bind NOVA in dealings with third parties. It shows only that Daily was permitted to identify acquisition candidates for NOVA, that is, he was permitted to keep his eyes open for good acquisition opportunities and to let NOVA know if he saw any.
For similar reasons, we are not persuaded by Auerbach’s contention that Daily in fact brought four acquisition candidates to NOVA, two of which NOVA acquired. Putting aside USB’s argument that Auerbach’s contention is factually unsupported—because, for example, one of the candidates was actually acquired by PMT before PMT merged with NOVA, and another was targeted for acquisition by PMT long before the merger with NOVA—the argument still fails, because it still does not show that Daily was NOVA’s agent. Daily was allowed to identify or suggest acquisition opportunities for NOVA, but that does not mean that he had authority to bind NOVA in dealings with third parties.
6. Daily’s June 1999 Letter
Auerbach argues that when Daily, in his June 1999 letter, said that he was willing to take an “active role in preparing [certain companies, of which iPayment was one,] to be sold to NOVA,” Grzedzinski “never told him not to.” Auerbach apparently infers that Grzedzinski thereby authorized Daily to act as NOVA’s agent in taking the “active role” envisioned in the letter.
We disagree. Daily’s June 1999 letter constituted his written request for an exception to his non-competition agreement so that he could invest in iPayment. His offer to “take a more active role in preparing” iPayment for sale was part of that request—as an investor in iPayment, he would be in a position to prepare it for sale. Auerbach cites no evidence for the claim that Grzedzinski never told Daily not to take an “active role,” but even if the claim were supported, it would be irrelevant. NOVA’s board expressly rejected Daily’s request, so it unequivocally “told him not to” take the “active role” he had proposed. It does not matter whether Grzedzinski personally told Daily as well.
B. Ostensible Agency
1. NOVA’s Alleged Awareness in 2000 of Daily’s Involvement in iPayment
Auerbach contends that Grzedzinski has admitted that after Daily certified to NOVA in December 1999 that he had disposed of his investment in iPayment, NOVA was aware that Daily continued to be involved in iPayment. As evidence for that contention, Auerbach cites Grzedzinski’s testimony that “all prior testimony would indicate that at some point in time in 2000 we were aware that [Daily] was involved in some way, shape, or form with [iPayment] . . . .” Auerbach argues that Grzedzinski’s testimony tends to show ostensible agency because it tends to prove that NOVA was not “innocent” and “was not unaware of what Daily was doing.”
The argument fails for multiple reasons. First, the testimony has no tendency to show that NOVA ever caused any third parties to believe that Daily was NOVA’s agent, as would be required for ostensible agency. Auerbach claims that the testimony is still relevant, however, because it shows NOVA’s lack of “innocence,” which is relevant under Monteleone v. Southern California Vending Corp. (1968) 264 Cal.App.2d 798. Auerbach is mistaken, because in that case there was no dispute about actual agency; rather, the parties disputed the scope of authority, actual or ostensible, invested in the individual who was undisputedly the principal’s agent. (Id. at pp. 805-808.) In the absence of evidence that Daily was Auerbach’s actual or ostensible agent, considerations such as NOVA’s putative lack of “innocence,” which would affect only the scope of an agent’s actual or ostensible authority, are irrelevant.
Second, Auerbach’s entire argument is based upon a misrepresentation of Daily’s testimony. The record does not contain the question to which Grzedzinski was responding, but it does contain his entire answer, which was the following: “In 2000, I—what part of 2000? You know, again, I’m vague. I don’t have your kind of recall on these dates because—obviously you’ve studied them. [¶] But I think all prior testimony would indicate that at some point in time in 2000 we were aware that [Daily] was involved in some way, shape, or form with [iPayment], because after having requested approval by the board to be involved, which was denied, we discovered—well, we heard through rumor that he was, indeed, involved. And then I confronted him, and he admitted to being involved, and I—[.]” The examining attorney then interrupted Grzedzinski with the question “That was back in 1999?” A defense attorney interjected, “I would move to strike the answer as being—[,]” but Grzedzinski answered, “That would mean that I knew it in 2000 as well.” The examining attorney then continued, in response to the motion to strike, “You don’t need to because—the question apparently was not clear because you responded to what I think is a different question, so let me re[-]ask it, and I’ll try and make it more clear.” The record does not contain the question or questions that followed.
Read in context, Grzedzinski’s testimony does not support Auerbach’s contention that in 2000 NOVA “was not unaware of what Daily was doing.” Grzedzinski was saying only that, given that NOVA knew in 1999 that Daily was involved in iPayment, NOVA also knew in 2000 that in 1999 Daily was involved in iPayment—NOVA had not forgotten what it already knew in 1999. The testimony thus proves nothing about what NOVA knew in 2000 about what Daily was doing in 2000.
2. Grzedzinski’s Awareness of Rumors Concerning Daily’s Activities
In further support of its contention that NOVA was not “innocent” and “was not unaware of what Daily was doing,” Auerbach cites some additional testimony of Grzedzinski concerning “rumors and scuttlebutt” relating to Daily’s involvement with iPayment. The testimony is irrelevant for the same reason as the testimony discussed in the preceding section—it has no tendency to show that NOVA ever caused any third parties to believe that Daily was NOVA’s agent, as would be required for ostensible agency.
3. Other Arguments
Auerbach contends that Daily’s June 1999 letter shows NOVA’s lack of “innocence,” but we have already concluded that such a showing is of no consequence in the absence of other evidence that Daily was NOVA’s actual or ostensible agent. We have also concluded that NOVA’s board unequivocally informed Daily that it rejected the proposals contained in the letter.
Auerbach also argues that by providing Daily with the title of vice chairman of NOVA’s board, NOVA “consciously chose[] to invest Daily with . . . an image” of agency. But the title of vice chairman of the board of directors did not invest Daily with an image of agency. A vice chairmanship is merely a position within the board, and it is well-known that the board acts on behalf of the corporation only as a body, not through its individual members. (See 2 Fletcher Cyclopedia of the Law of Private Corporations, supra, § 505, p. 581.)
NOVA’s failure to communicate expressly to the public at large that the vice chairmanship was merely “honorary” is similarly of no consequence. It does not matter whether the position was “honorary,” or whether NOVA communicated that purported fact to the public. What matters is that the position did not make Daily NOVA’s actual or ostensible agent.
C. Agency by Ratification
In discussing the issue of ratification, Auerbach describes at length the evidence concerning what NOVA’s management allegedly knew about Daily’s involvement in iPayment. But Auerbach’s arguments concerning NOVA’s alleged ratification of Daily’s conduct, based on whatever NOVA knew of that conduct, ultimately focus on (1) the board’s action on Daily’s June 1999 letter, and (2) NOVA’s failure to remove Daily from the board or otherwise limit his authority. Neither shows that Daily was NOVA’s agent by ratification.
As regards the June 1999 letter, Auerbach argues that because the board rejected Daily’s request for permission to invest in iPayment but did not expressly address his proposal to take an “active role in preparing [iPayment and another company] to be sold to NOVA[,]” a jury could reasonably infer that the board implicitly approved Daily’s proposal to take such an active role. We disagree. As we have already explained, Daily’s proposal to take an active role in preparing iPayment for sale to NOVA was a component of his request for permission to invest in iPayment. As an investor, he would be in a position to take the proposed active role. The agenda for the board meeting at which Daily’s request was discussed places Daily’s proposed active role in precisely that context: Daily’s proposal to take an active role is included as a bullet point within the summary of Daily’s request for permission to invest in iPayment. The board unequivocally denied Daily’s request. That denial cannot reasonably be interpreted as an approval of one of the request’s parts.
As regards NOVA’s failure to remove Daily from the board, Auerbach argues that because NOVA was aware that Daily both wished to prepare iPayment to be sold to NOVA and had in fact invested in iPayment, NOVA’s failure to remove him from the board or otherwise act to limit his authority showed that NOVA ratified Daily’s conduct with respect to iPayment. The argument fails. When Daily asked for permission to invest in iPayment, NOVA’s board turned him down. When Grzedzinski later learned that Daily had already invested in iPayment before even asking permission, Grzedzinski required Daily to terminate the investment and certify in writing that he had done so, which he did. There is no evidence of a single act of Daily’s that was purportedly performed on behalf of NOVA and later accepted or adopted by NOVA as its own—there is not even any evidence that anyone at NOVA (other than Daily) was ever aware that, in his dealings with Auerbach and iPayment, Daily was (allegedly) purporting to act on behalf of NOVA. There is consequently no evidence of agency by ratification. (Rakestraw v. Rodrigues, supra, 8 Cal.3d at p. 73.)
For all of the foregoing reasons, we conclude that Auerbach has not introduced evidence sufficient to create a triable issue of fact on actual agency, ostensible agency, or agency by ratification. Accordingly, the trial court should have granted USB’s motion for summary judgment on the ground that Daily was not NOVA’s agent, and we affirm the judgment in favor of USB on that basis.
II. USB’s Cross-Appeal Is Moot
Our resolution of the agency issue on Auerbach’s appeal renders USB’s cross-appeal moot and therefore subject to dismissal. (Cf. Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 872.) Without expressing any opinion on whether USB’s cross-appeal was otherwise proper, we dismiss it.
III. We Decline Daily’s Request to Direct Entry of Judgment in His Favor
The judgment in favor of USB does not dispose of any of Auerbach’s claims against Daily. Daily nonetheless contends that he is a proper respondent on Auerbach’s appeal from the judgment, and he asks us to direct entry of judgment in his favor on all of Auerbach’s claims, on the basis of something he calls “the rule of interdependent principal and agent liability.” We decline Daily’s request.
Daily is not a proper respondent on Auerbach’s appeal. The respondent is the “party in whose favor the judgment was given” in the trial court. (Code Civ. Proc., § 906.) The judgment at issue on this appeal does not dispose of any of Auerbach’s claims against Daily. The judgment therefore was not given in his favor, so he cannot be a respondent.
In any event, even if we agreed with Daily’s contention that he can be a respondent on an appeal from a judgment to which he is not a party, we would still decline his request that we direct entry of judgment in his favor. We affirm the judgment in favor of USB solely on the ground that because Daily was not NOVA’s agent, USB cannot be held derivatively liable for Daily’s conduct. Our decision has no effect on Auerbach’s claims against Daily, which seek to hold him primarily liable for his own conduct.
DISPOSITION
The judgment is affirmed. USB’s cross-appeal is dismissed. The parties shall bear their own costs.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Also, in the trial court Auerbach submitted a 24-page expert declaration concerning the agency issues, but the trial court excluded the declaration in its entirety. Auerbach argues that the exclusion of the declaration was an abuse of discretion, but Auerbach’s only attempt to argue that the exclusion was prejudicial consists of the following sentence: “If the declaration is considered, it raises a triable issue.” That is not sufficient. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) We therefore will not consider the declaration.
Auerbach also claims, for example, that Grzedzinski “conceded that he did not tell Daily not to represent himself as NOVA’s Vice Chairman,” and that NOVA’s “board never took action to limit Daily’s authority.” None of that shows actual agency. Grzedzinski’s failure to tell Daily not to represent himself as the vice chairman of NOVA’s board does not show that Grzedzinski ever gave Daily authority to bind NOVA in dealings with third parties. And the board’s failure to take action to limit Daily’s authority proves nothing, given the absence of any evidence that Daily ever had any authority at all.