Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC247681 Victor H. Person and Michael C. Solner, Judges.
Simon & Simon, Jeffrey S. Simon and David A. Simon; Martin & McCormick and Kathy J. McCormick for Plaintiff and Appellant.
Baer & Troff and Eric L. Troff; The Gansinger Firm and James M. Gansinger for Defendants and Respondents.
WILLHITE, Acting P. J.
INTRODUCTION
Both appellant Contemporary Services Corporation (CSC) and respondent Staff Pro Security, Inc. (Staff Pro) provide security and event staffing services to arenas, stadiums, and similar venues in which concerts, athletic events, and trade shows are held. CSC sued Staff Pro and its President and Chief Executive Officer (CEO) Cory Meredith (collectively Staff Pro).
In its first amended complaint, CSC alleged that Staff Pro, in violation of California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), committed various practices resulting in injury to CSC. CSC’s first cause of action alleged that Staff Pro engaged in below-cost pricing in violation of Business and Professions Code section 17043. CSC alleged that Staff Pro charged some of its clients rates substantially below Staff Pro’s actual costs, thereby precluding CSC from submitting competitive bids. The trial court granted Staff Pro’s motion to summarily adjudicate this cause of action in its favor and subsequently denied on the merits CSC’s motion to reconsider that ruling. CSC’s second cause of action alleged that Staff Pro engaged in unfair competition in violation of Business and Professions Code section 17200 by engaging in “ghost billing.” That is, CSC alleged that Staff Pro billed clients for services that were never rendered in order to make up for the financial shortfalls caused by its submission of below-cost bids. The trial court granted Staff Pro’s motion to dismiss this cause of action, finding that CSC lacked standing to pursue this claim because it had not suffered an “injury in fact” as required by Business and Professions Code section 17204.
In this appeal, CSC primarily contends that the trial court’s grant of summary adjudication of its first cause of action and its dismissal of the second cause of action for lack of standing were erroneous. Secondarily, CSC attacks three discovery-related rulings made by the trial court. We are not persuaded by any of CSC’s arguments and therefore affirm the judgment.
I. STAFF PRO’S MOTION FOR SUMMARY ADJUDICATION ON CSC’S FIRST CAUSE OF ACTION
A. Factual and Procedural Background
1. Staff Pro’s Summary Adjudication Motion
As stated in our introduction, CSC’s first cause of action was for below-cost pricing in violation of Business and Professions Code section 17043. That statute provides: “It is unlawful for any person engaged in business within this State to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition.” (Italics added.) (Bus. & Prof. Code, § 17043.)
The first cause of action also relied upon Business and Professions Code sections 17095 to impose liability upon Meredith and 17070 to obtain injunctive relief and monetary damages.
Staff Pro moved for summary adjudication of the first cause of action. Staff Pro offered three declarations to establish that in calculating and submitting its bids, it did not act with the purpose to injure or destroy its competitors. One declaration was from CEO and President, Cory Meredith; the other two were from Staff Pro’s past and present Chief Financial Officers (CFO). The declarations explained the methodology Staff Pro used to calculate a bid.
Meredith’s declaration explained, in pertinent part:
We omit from the three declarations the portions to which the trial court sustained CSC’s evidentiary objections.
“3. Staff Pro’s ‘product’ is labor and the management of labor. Staff Pro’s business philosophy has always been to never bid for any staffing event below Staff Pro’s cost. Staff Pro has never bid for any contract with the intent to lose money. Nevertheless, it has happened that after a contract has been awarded to Staff Pro, over the life of the contract, Staff Pro may lose money if unforeseen events, such as a raise in the minimum wage, occur. Furthermore, Staff Pro has never bid a contract with the specific purpose of injuring CSC or any other competitor in the event staffing, security and audience management industry....
“5. It was never Staff Pro’s intent to bid a contract merely to get a job, whether or not Staff Pro could make a profit. Staff Pro never bid a contract with the knowledge that Staff Pro would not make a profit or that Staff Pro’s bid would be below its cost....
“10. The prices at which Staff Pro priced its services at Irvine Meadows (now Verizon Amphitheatre) and Glen Helen Blockbuster Pavilion (now Hyundai Pavilion) in 1997, 1998, 1999 and 2000 were set because I was aware of the price levels at which many of Staff Pro’s competitors were offering their services in Southern California. Staff Pro’s prices at these venues were offered at levels that I believed were competitive with the prices being offered by Staff Pro’s competitors in the Southern California market in each of these years.
“11. As President of Staff Pro it was important to me to attempt to maintain and, if possible, to increase Staff Pro’s market share in the event staffing and security business in Southern California. In order to maintain, and hopefully increase, Staff Pro’s market share, it was necessary, in my business judgment, to price Staff Pro’s services at price levels that were competitive, i.e. that met, the prices offered by Staff Pro’s competitors.” (Italics added.)
Meredith explained that the declarations from Staff Pro’s two CFOs accurately set forth Staff Pro’s procedure for calculating its bids and that he had worked with them to develop and implement that bidding methodology. According to Meredith, that “methodology has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.”
Wayne Neumann had been Staff Pro’s CFO from 1994 to 1999. He explained:
“5. In order to attempt to assure profitable contracts, the methodology that [Meredith and I] developed involved first determining the direct pay rate that we were paying to our employees who would be providing the services to our customers. I then calculated the ‘burden’ to add to this direct labor cost. Burden includes employer payroll taxes, unemployment compensation insurance and workers compensation insurance. The third step was to add a gross profit component of 25-30% on top of the direct labor cost.
“6. The 25-30% gross profit component was designed by us to include the cost of all administrative costs such as staff salaries, rent and other overhead costs, as well as non-operating costs such as depreciation and amortization. Roughly speaking, this 25-30% gross profit component included an overhead component of 8-10%, an administrative component of 8-10% and an expected profit component of 8-10%.
“7. It was my opinion that the 25-30% gross profit figure was adequate to cover all costs and result in a reasonable profit to the company based upon my many years of experience as a Chief Financial Officer and by my in depth knowledge of the actual operating and overhead experiences of Staff Pro. I had performed a number of cost analyses of a number of Staff Pro’s contracts and was confident that the bidding methodology that we developed would provide for profitable operations.”
Edward Masotti served as Staff Pro’s CFO from 1999 to February 2005. Masotti’s detailed explanation of Staff Pro’s bidding methodology paralleled that given by Neumann. Masotti averred: “I have performed several cost analyses on a number of Staff Pro’s contracts and I am confident that the bidding methodology that was developed [by Neumann], and which I continue to use, provides for profitable operations.” (Italics added.) In addition, Masotti’s declaration included two charts to establish that Staff Pro did not engage in below-cost bidding. The first chart set forth Staff Pro’s bids for nine events conducted from 2001 through 2003 and the bids submitted by two competitors for the same events. The chart indicated that Staff Pro’s bids were the same as or higher than the competitors’ bids. The second chart, based upon invoices, set forth Staff Pro’s rate for contract labor at two venues for a five-year period (1997-2001) as compared to two competitors’ rates for the same time frame. In each instance, Staff Pro’s rate was the same as or greater than that charged by its competition.
2. CSC’s Opposition to the Summary Adjudication Motion
CSC’s opposition to the summary adjudication motion offered deposition testimony and declarations to counter Staff Pro’s evidentiary showing that Staff Pro did not submit below-cost bids. Although the trial court sustained Staff Pro’s objections to the bulk of this evidence, CSC’s appeal challenges only one of those evidentiary rulings: the striking of three paragraphs from the declaration of CSC’s vice-president James Granger. We will set forth that specific evidence later when we address CSC’s claim that the evidentiary ruling was an abuse of discretion. Other than that, we will not detail the particulars of CSC’s stricken evidence. “[Because] the trial court sustained defendants’ evidentiary objections to those items, and [CSC] does not challenge those evidentiary rulings on appeal[, ] [w]e therefore presume that those evidentiary rulings were correct [citation], and we disregard those excluded items.” (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1022.) And to the extent CSC argues a triable issue of fact was created either by its non-stricken evidence or evidence proffered by Staff Pro, we will set forth that evidence when we discuss whether the trial court properly summarily adjudicated the first cause of action in Staff Pro’s favor.
CSC also filed a 572-page Separate Statement of Highly Confidential Facts to oppose Staff Pro’s summary adjudication motion. The document was filed under seal pursuant to a Protective Order and Confidentiality Stipulation executed by the parties and signed by the trial court. CSC urges that information in this particular document establishes that a triable issue of material fact exists. We conclude that the argument has been forfeited by CSC’s deficient presentation first in the trial court and later in this appeal.
CSC filed a motion to augment the record on appeal to include this sealed document. Staff Pro filed no opposition to the motion. The motion is granted. (Cal. Rules of Court, rules 8.46(c) and 8.155(a)(1)(A).)
3. The Trial Court’s Tentative Ruling and the Hearing on the Motion
In its tentative ruling, the trial court indicated that it would deny Staff Pro’s motion for summary adjudication based upon Code of Civil Procedure section 437c, subdivision (e) (hereafter subdivision (e)). In pertinent part, subdivision (e) provides: “[S]ummary judgment may be denied in the discretion of the court... where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” The trial court’s tentative ruling was based upon its mistaken belief that the only evidence that Staff Pro had offered to establish that it did not act with the purpose to injure or destroy its competitors was the declaration from Meredith, its CEO and President.
All subsequent undesignated statutory references are to the Code of Civil Procedure.
At the hearing on the motion, Staff Pro corrected the trial court’s mis-perception. Staff Pro’s counsel explained that Meredith’s declaration was not the sole evidentiary basis of its motion because it was also relying upon the declarations of CFOs Masotti and Neumann.
Since neither party had addressed subdivision (e)’s potential application, the trial court permitted the parties to file additional briefing on this question. In addition, the trial court ruled upon the parties’ evidentiary objections.
4. The Trial Court Grants Summary Adjudication to Staff Pro
After the parties submitted additional briefs, the court granted summary adjudication to Staff Pro. Its minute order explains:
“The Court has ruled separately on the parties’ evidentiary objections. The Court did not consider any evidence to which an objection was sustained.
“Staff Pro... contends that CSC cannot establish that Staff Pro acted with the purpose of injuring competitors or destroying competition. Even assuming that Staff Pro sold its services below cost -- whether it did so is a question of fact, [citation] -- CSC must prove that it [Staff Pro] did so with the express purpose of damaging or destroying competition. [Citation.]
“Cory Meredith has stated in his declaration that Staff Pro didn’t intend to injure competition. The company has no policy of pricing below cost, and does not intend to destroy CSC. Previously, the Court tentatively denied the motion... pursuant to CCP Section 437c(e)[.]... The tentative ruling denying the motion invoked this rule, noting that the only evidence of Staff Pro’s ‘intent’ in regards to pricing was from Cory Meredith, CEO of Staff Pro.
“The parties were permitted to submit further briefing on this issue, and this issue alone....
“CCP Section 437c(e) allows the court to deny a motion for summary judgment where the only proof of a material fact is made by an INDIVIDUAL who was the sole witness to the fact, or where the fact is an INDIVIDUAL’S state of mind, and the fact is sought to be established by the INDIVIDUAL’S affirmation thereof. As Staff Pro convincingly argues, the issue in the present motion is not an individual’s state of mind, but rather Staff Pro’s ‘intent’ with regards to any below cost pricing. Thus, while CCP Section 437c(e) would apply if Cory Meredith’s state of mind or intent were at issue, it does not apply because no one individual’s intent is at issue.
“Furthermore, Staff Pro’s former Chief Financial Officers (Wayne Neumann and Edward Masotti) have described Staff Pro’s pricing methodology, which was designed and intended to provide for the company’s profitable operation. Its bids have included a 25-30% gross profit figure, which it has found adequate to cover costs and result in a profit to the company. CSC has submitted no evidence to the contrary. Therefore, Staff Pro is entitled to summary adjudication of the first cause of action on this basis.” (Capitalization in original, italics and boldface added.)
The trial court rejected the two other grounds urged by Staff Pro in support of its summary adjudication motion.
CSC subsequently filed a motion for reconsideration which the trial court denied. We will set forth the specifics of the motion and the trial court’s ruling later in this opinion when we discuss CSC’s contention that the trial court erred in denying the reconsideration motion.
B. The Trial Court Properly Granted Summary Adjudication to Staff Pro
In this appeal, CSC improperly conflates procedural, evidentiary and substantive arguments into an overall attack on the trial court’s decision to grant Staff Pro’s summary adjudication motion. In addition, CSC improperly includes facts from its motion for reconsideration to argue that the trial court erred in granting summary adjudication. For clarity of analysis, we address separately each of CSC’s arguments. First, we discuss CSC’s contentions that the trial court abused its discretion in (1) overruling CSC’s objections to Staff Pro’s evidence and (2) sustaining Staff Pro’s objections to CSC’s evidence. Second, we discuss CSC’s claim that in granting the summary adjudication motion, the trial court improperly relied upon evidence it had stricken. Third, we discuss whether subdivision (e) applies to this case. Fourth, we consider CSC’s procedural argument that the trial court improperly relied upon evidence not identified in Staff Pro’s Separate Statement of Undisputed Facts (SSUF) when it granted summary adjudication to Staff Pro. After rejecting all of those claims of error, we conclude that based upon the evidence presented, the trial court properly granted summary adjudication. In a separate portion of this opinion, we address CSC’s motion for reconsideration.
Following the trial court’s grant of Staff Pro’s motion for summary adjudication, CSC filed a petition for a writ of mandate. We issued an alternative writ. After Staff Pro filed its return and we had an opportunity to more thoroughly review the record, we concluded that CSC’s petition had been materially misleading in several respects. We therefore discharged the alternative writ as having been improvidently granted and, without reaching the merits, summarily denied CSC’s petition. (Contemporary Services Corp. v. Superior Court (Staff Pro, Inc. et. al.) (April 25, 2006, B188217).)
1. The Trial Court Did Not Abuse Its Discretion In Overruling CSC’s Objections to Meredith’s Declaration
CSC urges that the trial court abused its discretion in overruling its objections to paragraph three of Meredith’s declaration. As set forth earlier, that paragraph averred:
“3. Staff Pro’s ‘product’ is labor and the management of labor. Staff Pro’s business philosophy has always been to never bid for any staffing event below Staff Pro’s cost. Staff Pro has never bid for any contract with the intent to lose money. Nevertheless, it has happened that after a contract has been awarded to Staff Pro, over the life of the contract, Staff Pro may lose money if unforeseen events, such as a raise in the minimum wage, occur. Furthermore, Staff Pro has never bid a contract with the specific purpose of injuring CSC or any other competitor in the event staffing, security and audience management industry.” (Italics added.)
CSC objected: “The statement lacks foundation, mis-characterizes testimony, and is an improper opinion.”
In this appeal, CSC contends that the italicized statements in paragraph three constitute “impermissible opinion.” CSC argues that the declaration shows that Meredith “had no involvement in bidding and had no knowledge of whether or not the methodology created by Messrs. Neumann and Masotti was actually used in preparing bids. There was simply no foundation set forth in Mr. Meredith’s Declaration for the statements made with regard to Staff Pro never billing below cost and it was an abuse of discretion to permit the introduction [of] and [to] rely on such objectionable statements.”
CSC’s arguments are not persuasive. CSC overlooks material portions of Meredith’s declaration, portions to which CSC posed no objections. Meredith averred that he had been Staff Pro’s President and CEO since the company had been founded. Meredith explained that in that capacity, he had worked with both Neumann and Masotti “in developing and implementing the bidding methodology described in their Declarations”; that those two declarations “accurately described” “Staff Pro’s procedure for calculating its bids”; and that “[t]his methodology has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” These averments established Meredith’s personal knowledge of the methodology of Staff Pro’s bidding process and its use (past and present). The trial court therefore did not abuse its discretion in overruling CSC’s objections to paragraph three of Meredith’s declaration. (See Tri-Q, Inc. v. Sta-Hi Corp. (1965) 63 Cal.2d 199, 208 [testimony of both defendant’s president and its chief executive officer was sufficient to support the finding that the defendant did not set a low price for its product with the intent to injure or harm competitors].)
2. The Trial Court Did Not Abuse Its Discretion In Sustaining Staff Pro’s Objections to Granger’s Declaration
CSC urges that the trial court abused its discretion in sustaining Staff Pro’s objections to portions of the declaration of Granger, CSC’s vice-president. CSC argues that the ruling constitutes prejudicial error because the stricken evidence created a triable issue of material fact. We are not persuaded that the contested ruling was an abuse of discretion.
CSC also makes a passing reference to two other items of evidence it proffered (the declaration of Thomas Pratte and the deposition testimony of Tushan Rajapaska) and to which the trial court sustained Staff Pro’s objections. In a footnote in its opening brief, CSC argues that this stricken evidence “directly contradict[s] Mr. Meredith’s conclusory statements.”
By way of background, Granger first explained: “I was hired to work for Event Management Services by Defendant Cory Meredith when he started the company in about 1984. Event Management Services changed its name to Staff Pro in 1987. I left employment with Staff Pro sometime in the summer of 1988. I worked under... Meredith for almost four (4) years at Staff Pro and had many discussions and conversations with [him] about his business ‘philosophies’ and practices.”
The trial court sustained Staff Pro’s objections to the following three paragraphs of Granger’s declaration in which he recounted in general terms conversations he allegedly had with Meredith.
“4. I have read the Declaration of Cory Meredith attached in support of Defendants’ Motion for Summary Adjudication wherein he states that the business ‘philosophy’ of Staff Pro had ‘always been to never bid for any staffing event below Staff Pro’s costs.’ Additionally, Cory Meredith states that Staff Pro ‘has never bid a contract with the specific purpose of injuring CSC or any other competitor.’ When I was employed with Staff Pro, Cory Meredith admitted just the exact opposite in conversations which I had with him. Cory Meredith admitted to me in conversations that Staff Pro purposefully bid lower rates, and needed to ‘ghost bill’ to cover the costs associated with the lower rates. Cory Meredith commented to me that in order to get jobs Staff Pro would purposefully ‘come in low, ’ ‘to give the customer a reason to use Staff Pro, ’ and then over bill or ‘ghost bill’ for people who did not actually work. This was Staff Pro and Cory Meredith’s business ‘philosophy.’ Cory Meredith commented to me that the low rates resulted in what amounts to an operating loss, but ‘ghost billing’ took care of it. Cory Meredith stated to me that Staff Pro essentially did business[ ] this way, bidding well below its competitors to get the business, and then ‘ghost billing’ the clients to make up the difference. This was a common practice, policy and/or procedure for Staff Pro and Cory Meredith.
“5. When I worked at Staff Pro, I was specifically directed by Cory Meredith, himself, to sign people on time sheets that did not work at events. I had conversations with Cory Meredith wherein he told me that it was common practice at Staff Pro to prepare the invoices to the clients with the extra people who did not work being billed to the client – ‘ghost billing.’ Cory Meredith explained and admitted to me that he knew of and was involved in the ‘ghost billing’ and that the reason for such ‘ghost billing’ was to make up for Staff Pro’s low rates or the rates that Staff Pro charged its customers. I understood from the directives of Cory Meredith that he was directing me to keep the client from knowing that Staff Pro had less people than were supposed to work and then what the client was charged. One time, I asked Cory Meredith what was in it for me to do this since the customer trusted me, to which Cory Meredith responded essentially that my employment depended on it.
“6. In my conversations with Cory Meredith, I would ask the question, ‘what do you do with the extra money, ’ and he told me it was paying for insurance and other expenses Staff Pro has since it did not have a good rate from the Universal Amphitheater, and this ‘ghost billing’ made up for the rate. Essentially, Cory Meredith admitted and told me that since Staff Pro was charging such low rates, it had to make money by ‘ghost billing.’ This was Staff Pro’s business model.” (Italics added.)
Staff Pro raised multiple objections to the preceding three paragraphs. These included that Granger’s declaration described conversations which had occurred long before the events giving rise to the lawsuit and that Granger’s averments failed to identify with particularity what Meredith “specifically said in the purported conversations, when the conversations took place, where they took place and who was present during these conversations.” The trial court sustained Staff Pro’s objections and struck paragraphs 4 through 6 in their entirety.
The trial court also sustained Staff Pro’s objections to other paragraphs in Granger’s declaration but CSC raises no claim of error in that regard.
As CSC concedes, we review a trial court’s ruling on evidentiary objections in summary adjudication litigation for an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) Abuse of discretion means that the ruling “exceeds the bounds of reason, all of the circumstances before it being considered.” (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498.)Here, we find no abuse of discretion.
In his declaration, Granger averred that he had worked for Meredith from 1984-1988. Granger purported to describe conversations he had had with Meredith about Meredith’s business philosophy and Staff Pro’s practices during that time period. These conversations, however, lacked temporal proximity to the events alleged in CSC’s lawsuit. CSC filed its action in 2001; its cause of action for below-cost pricing has a four-year statute of limitations (Bus. & Prof. Code, § 17208). Thus, the lawsuit, at most, put in issue events occurring from 1997 to 2001. But Granger’s declaration referenced, in the most general manner, conversations that allegedly occurred in 1984-1988, 9-13 years before the events underlying CSC’s lawsuit.
Further, Granger’s conversations with Meredith occurred long before Meredith, working with Neumann (Staff Pro’s CFO from 1994 to 1999), developed the methodology Staff Pro uses to formulate its bids. Masotti, Staff Pro’s CFO from 1999 to 2005, continued to use this methodology. Staff Pro relied upon the evidence of its creation and use of this methodology-a methodology designed to yield profitable contracts-in its summary adjudication motion to establish that it did not submit below-cost bids. Granger’s averments did not address the time period raised by the lawsuit (1997 through 2001) but, instead, addressed a much earlier period (1984-1988). In light of this deficiency, the trial court could reasonably conclude that Granger’s declaration was not relevant evidence about the methodology Staff Pro used to calculate bids during the period covered by the lawsuit. Because the declaration lacked probative value on the issues raised by CSC’s lawsuit, the trial court did not abuse its discretion in sustaining Staff Pro’s objections to paragraphs 4 through 6 of Granger’s declaration.
3. The Trial Court Did Not Rely Upon Stricken Evidence in Granting Summary Adjudication to Staff Pro
CSC argues that “it [is] indisputable that the Trial Court improperly relied on evidence that it found to be inadmissible in granting the Motion for Summary Adjudication.” That is, CSC claims that although the trial court sustained CSC’s objections to paragraph seven of Masotti’s declaration and paragraph eight of Neumann’s declaration, it, nonetheless, relied on those stricken paragraphs to grant summary adjudication to Staff Pro.
The stricken paragraphs were virtually identical. Each averred that to the declarant’s “knowledge at no time while [he] was the Chief Financial Officer at Staff Pro did Staff Pro ever bid for a contract with knowledge it was bidding below its cost. Staff Pro always bid amounts that included a reasonable profit over and above its direct and indirect costs.”
The record directly refutes this misleading argument. At the hearing on the summary adjudication motion, the trial court sustained CSC’s objections to the portions of the declarations CSC now claims the trial court relied upon. Further, the trial court’s minute order granting the summary adjudication motion (set forth above) recites: “The Court has ruled separately on the parties’ evidentiary objections. The Court did not consider any evidence to which an objection was sustained.” (Italics added.) We must presume that the trial court complied with its own evidentiary rulings. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”]; ABF Capital Corp. v. Grove Properties Co. (2005) 126 Cal.App.4th 204, 213.)
Nonetheless, CSC argues that the record is susceptible of only one reasonable conclusion: the trial court must have considered the two stricken paragraphs because this was the only evidence “that addressed purpose or intent” and therefore supported the grant of summary adjudication. Not so. As we will explain in great detail below, the admissible evidence offered by Staff Pro in the declarations of Meredith, Masotti and Neumann supports the grant of summary of adjudication on the first cause of action.
4. Subdivision (e) Does Not Apply to This Action
To recapitulate, subdivision (e) provides: “[S]ummary judgment may be denied in the discretion of the court... where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (§ 437c, subd. (e).) (Italics added.) Although the trial court initially believed this provision was potentially relevant to Staff Pro’s motion, it ultimately concluded that it was not. CSC urges that decision was error, contending that “the Meredith Declaration was the only Declaration setting forth Staff Pro’s ‘intent’ [so that the case] falls squarely within Section 437c(e), and the Motion should have been denied.” We disagree for several independent reasons.
First, CSC mischaracterizes the statute. The statute does not require denial of the motion if state of mind is a material issue and only one declaration about state of mind is tendered to support a motion for summary adjudication or judgment. Instead, the statute gives the trial court the discretion to deny the motion even though no evidence is presented to contradict that one declaration. Thus, even were we to conclude that the statute applies (a conclusion we do not reach for the reasons explained below), the real issue would be whether the trial court abused its discretion in granting Staff Pro’s summary adjudication motion.
One leading practice guide explains that subdivision (e) gives the trial court the “discretion to deny summary judgment if the moving party has such control of critical evidence that the opposing party is unable to file controverting declarations. [Citation.] [¶] This power is limited to cases where the moving party’s declarations are from a sole witness to a fact or reflect the declarant’s state of mind. [Citations.]... [¶] In these limited situations, the court has discretion to deny summary judgment although no ‘triable issue’ of fact can be shown. Reason: The opposing party cannot reasonably be expected to controvert declarations as to facts exclusively within the moving party’s knowledge or control. Since the case turns largely on the credibility of the moving party’s testimony, the court should have power to send the matter to trial. [¶] But the decision is discretionary, not mandatory. And, it is not necessarily an abuse of discretion to grant summary judgment on the basis of such declarations-even though their credibility cannot be controverted. [Citation.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶¶ 10:319 to 10:322, pp. 10-120 to 10-121.)
Second, the statutory language limits its application to a case in which “an individual’s state of mind, or lack thereof” is a material fact and a party seeks to establish that fact solely through a declaration from the individual. (§ 437c, subd. (e), italics added.) But this case does not involve the state of mind of an individual. Instead, it involves whether a corporation (Staff Pro) acted with the purpose of injuring or destroying its competitors. While a corporation is considered a “person” within the meaning of the state and federal constitutions (9 Witkin, Summary of Cal. Law (10th ed. 2005) Corporations, § 1, p. 775), it is not an “individual” with a state of mind. A corporation acts through its directors, officers and managing agents. (See Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167-168.) Consequently, a corporation’s purpose is established through the collective state of mind of those individuals because they determine and implement corporate policy. Thus, while the existence or non-existence of a corporate purpose can be established through declarations from those individuals, those declarations do not, within the meaning of subdivision (e), put the individual declarant’s state of mind in issue. Had the Legislature intended subdivision (e) to apply when the disputed issue was corporate purpose or state of mind, it could have used the word “person” instead of “individual” in the statutory language because “the word ‘person’ [in the Code of Civil Procedure] includes a corporation as well as a natural person.” (§ 17, subd. (a).)
Lastly, the predicate of the statute-reliance upon one declaration to establish state of mind-is not present in this case. Staff Pro did not rely solely upon the Meredith declaration to establish its corporate purpose. It also submitted declarations from Neumann and Masotti on that specific issue. The trial court relied upon all three declarations to find that Staff Pro had discharged its burden to establish that it did not set the price of its contracts with the purpose of injuring or destroying competitors.
In sum, subdivision (e) does not apply to this case. CSC therefore cannot rely upon it to seek reversal.
5. The Trial Court Did Not Abuse Its Discretion When It Relied Upon Evidence Not Identified in Staff Pro’s Separate Statement of Undisputed Facts to Grant Summary Adjudication
CSC urges that the trial court was precluded from relying upon the non-stricken portions of the Masotti and Neumann declarations to grant summary adjudication because Staff Pro did not identify that specific evidence in its SSUF.
CSC’s claim is based upon the following. Staff Pro’s summary adjudication motion included the Masotti and Neumann declarations. Staff Pro’s Undisputed Facts Nos. 6 through 11 addressed Staff Pro’s contention that it did not act with the purpose of destroying or injuring competition. To support those undisputed facts, Staff Pro relied upon Meredith’s declaration (the relevant text of which has been set forth earlier) and the two paragraphs from the Masotti and Neumann declarations that the trial court later struck. (See fn. 9, ante.) The SSUF did not identify the paragraphs of the Masotti and Neumann declarations describing Staff Pro’s pricing methodology that the trial court later relied upon in granting summary adjudication. According to CSC, the omission of those paragraphs from the SSUF precluded the trial court from relying upon them in rendering its ruling. On the facts of this case, we are not persuaded.
“Whether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) In exercising that discretion, the trial court should consider, among other things, the due process right of the opposing party (here, CSC) to be adequately informed of the evidence the moving party (here, Staff Pro) intends to rely upon to secure summary adjudication. (Ibid.) As we now explain with a detailed chronology of the summary adjudication litigation, the trial court’s consideration of the evidence not referenced in Staff Pro’s SSUF did not violate CSC’s due process rights. We therefore find that the trial court did not abuse its discretion in considering that evidence.
Staff Pro filed its summary adjudication motion in February 2005. Although the SSUF did not refer to all of the paragraphs in the Masotti and Neumann declarations, the motion did explain, inter alia, that Masotti’s declaration “demonstrate[s] that the method by which Staff Pro bids on contracts was always designed to generate a profit, after taking all of the company’s costs of operating and overhead into account.”
CSC filed its opposition to summary adjudication in June 2005. CSC set forth what it believed to be evidence to contradict Staff Pro’s evidentiary showing (set forth in Facts Nos. 6 through 11 of Staff Pro’s SSUF) that it did not act with the purpose of injuring or destroying competition.
Before the trial court conducted a hearing in June 2005 on the summary adjudication motion, it posted its tentative ruling. As previously discussed, that ruling indicated that the court believed that the only evidence offered by Staff Pro about whether it acted with the purpose of injuring or destroying competition was Meredith’s declaration and, as a result, the court had the discretion under subdivision (e) to deny the motion and had tentatively decided to exercise its discretion to deny the motion. At the hearing, Staff Pro’s attorney responded to the tentative ruling. He pointed out that Staff Pro had produced other evidence (the Neumann and Masotti declarations) to establish proper purpose and asked the trial court to consider that evidence in ruling upon its motion. CSC’s attorney did not directly respond to that point. In particular, he did not urge that it was improper for Staff Pro to rely upon the Neumann and Masotti declarations because Staff Pro had not cited them in the SSUF. Instead, he simply argued that a triable issue of material fact existed. After counsel completed argument, the court took the matter under submission.
Staff Pro’s attorney argued: “The declaration of Cory Meredith is not... the only evidence that was submitted in support. [¶] We also submitted the declarations of Wayne [Neumann] who is the former Chief Financial Officer of the corporation and the declaration of Ed [Masotti] who was Mr. [Neumann’s] successor as the Chief Financial Officer of the corporation. And both of those individuals testified in their declarations concerning the way in which Staff Pro arrives at prices that it quotes to customers and charges to its customers. And they have a very detailed explanation of the pricing model that Staff Pro uses. I think if you take a look at those declarations, you would see those declarations go specifically to the purpose issue, to show that Staff Pro did not act with purpose to either injure competitors or destroy competition.... [¶] So [I would] ask you to take a look at the [Neumann and Masotti] declarations which go directly to the issue of how Staff Pro prices and charges it clients. [¶] We believe that we have provided sufficient evidence to establish a prima [facie] showing of the lack of [improper] purpose, thereby shifting the burden under the [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826] case to [CSC] to come forward with production of sufficient evidence of actual purpose to establish a triable issue of fact.... [¶] I don’t think there is any question, Your Honor[, ] if you look at the evidence that was submitted by [CSC] in this case, particularly in light of the rulings that you’ve made on the objections, [CSC] has not submitted any evidence of actual purpose. And we believe we have made the prima [facie] showing under Aguilar to shift that burden of production.” (Italics added.)
Thereafter, Staff Pro requested leave to file a supplemental brief to address the applicability of subdivision (e). The trial court granted the request and allowed CSC to file a reply to Staff Pro’s supplemental brief.
Staff Pro’s supplemental brief argued, among other points, that subdivision (e) did not apply because it had offered declarations from three individuals (Meredith, Neumann, and Masotti) on the issue of purpose. CSC’s reply brief never argued that the trial court could not consider the Neumann and Masotti declarations. Instead, CSC claimed that the two declarations did “not directly relate to the issue of ‘purpose’ at all, and, at best, can only be said to inferentially relate to this issue.” On that basis, CSC requested denial of Staff Pro’s summary adjudication motion.
No further hearing was conducted on the summary adjudication motion. After considering the supplemental briefs, the trial court filed a minute order granting Staff Pro summary adjudication on the first cause of action. The minute order, set forth earlier, explained that the court was relying upon the three declarations tendered by Staff Pro.
In light of the above chronology, we conclude that the trial court did not abuse its discretion in considering the portions of the Neumann and Masotti declarations not referenced in Staff Pro’s SSUF. Once the trial court on its own motion raised subdivision (e) in its tentative ruling, Staff Pro, at the June 2005 hearing, pointed out the significance of the two declarations. CSC did not object on procedural grounds to Staff Pro’s reliance upon those two declarations. In its supplemental brief filed after the hearing, Staff Pro again relied upon the two declarations. CSC’s reply did not claim that it was improper or unfair for Staff Pro to cite those two declarations. Instead, CSC argued on the merits against the evidentiary significance of the declarations.
Clearly, CSC had both notice that Staff Pro intended to rely upon the declarations and ample opportunity to argue that the declarations did not establish what Staff Pro claimed they did. CSC never objected to Staff Pro’s reliance upon them because they were not cited in the SSUF. This failure to object constitutes a forfeiture of CSC’s right to raise this claim on appeal.
In any event, “[w]e conclude the trial court did not abuse its discretion by considering evidence of which [CSC] was well aware and which [it] had ample opportunity to debunk. This is not a case... where the plaintiff was sabotaged by the sneaky introduction of new evidence for the first time in the defendant’s reply. [Citation.] Rather, [Staff Pro] submitted declarations by those who [developed and used Staff Pro’s bidding methodology] as evidence [that Staff Pro did not act with the purpose of injuring or destroying competitors in submitting bids for jobs.] We cannot say the trial court abused its discretion by considering the evidence material to the single, dispositive issue.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 438.)
6. The Trial Court Properly Granted Summary Adjudication to Staff Pro on CSC’s First Cause of Action
In moving for summary adjudication, a defendant has “the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established.’” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; see also § 437c, subd. (o)(1).) Once this burden is met, the burden shifts to the plaintiff to prove the existence of a triable issue of material fact. If the plaintiff cannot meet its burden, the defendant is entitled to summary adjudication of the cause of action. (Id. at pp. 849-850.) We review de novo the trial court’s grant of summary adjudication. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.)
CSC’s first cause of action alleged below-cost bidding on contracts in violation of Business and Professions Code section 17043. “[T]o violate section 17043, a company must act with the purpose, i.e., the desire, of injuring competitors or destroying competition.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 174-175; see also CACI No. 3301.)
The crux of Staff Pro’s summary adjudication motion was that it had established that a critical element of CSC’s cause of action could not be met: wrongful purpose. In that regard, Staff Pro offered evidence that in bidding for contracts, it did not act with the purpose of injuring or destroying competitors such as CSC. Staff Pro proffered a declaration from Neumann who, in his capacity as Staff Pro’s first CFO and along with Staff Pro’s President and CEO Meredith, had developed its bidding methodology. In addition to explaining the details of a bid computation, Neumann explained that the methodology was designed to ensure that the contract yielded a reasonable profit for Staff Pro. A declaration from Masotti, Staff Pro’s CFO at the time of litigation, averred that Staff Pro continued to use the bidding methodology developed by Neumann. Masotti also gave specific examples of Staff Pro’s submission of bids equal to or higher than those submitted by competitors to show that Staff Pro did not submit below-cost bids. Lastly, Meredith’s declaration averred that the Neumann and Masotti declarations accurately set forth Staff Pro’s bidding methodology and that the methodology had been and still was the process by which Staff Pro computed its bids. Because this evidence demonstrated that Staff Pro’s bids were based upon a pricing methodology designed to generate a profit, Staff Pro necessarily established that it was not submitting below-cost bids. In addition, Meredith explained that Staff Pro never bid on a contract with the intent to lose money; never bid on a contract knowing that it would not make a profit; and never bid with the purpose of injuring any competitor (including CSC). Taken together, this evidence met Staff Pro’s burden to establish that CSC could not prove an essential element of its cause of action for below-cost bidding. The burden therefore shifted to CSC to prove a triable issue of material fact existed. CSC failed to meet that burden.
As explained earlier, the trial court struck three paragraphs of Granger’s declaration. CSC had offered the declaration to establish that a triable issue of material fact existed about whether Staff Pro submitted below-cost bids. Although we have already concluded that the evidentiary ruling was not an abuse of discretion, we note that, in any event, Granger’s averments would not have created a triable issue of material fact so as to require denial of Staff Pro’s summary adjudication motion. CSC’s lawsuit put in issue Staff Pro’s alleged practice of submitting low-cost bids beginning in 1997. Staff Pro offered evidence, in the form of the Meredith, Neumann and Masotti declarations, that since 1994 Staff Pro had consistently used a bidding methodology to calculate bids that was based upon making a profit, not suffering a loss. Granger’s averments addressed a much earlier period: 1984 through 1988. The stricken averments therefore did not contradict or conflict with Staff Pro’s evidence and would not have created a triable issue of material fact.
CSC’s contrary arguments are not persuasive.
CSC first urges that Staff Pro did not establish that it did not bid with the purpose to injure or destroy competition. CSC argues that the Neumann and Masotti declarations were insufficient evidence because neither man indicated “that he had any personal knowledge that the pricing methodology... was actually followed by Staff Pro when actual bids were made.” This argument misses the mark. Meredith explicitly averred that the methodology described by Neumann and Masotti “has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” Meredith was qualified to make this representation because, as Staff Pro’s President and CEO, he had worked with Neumann to develop the methodology. In addition, Masotti averred that he had “performed several cost analyses on a number of Staff Pro’s contracts and I am confident that the bidding methodology that was developed, and which I continue to use, provides for profitable operations.” (Italics added.) The trial court could reasonably infer from this representation that the pricing methodology described in Masotti’s declaration was, in fact, used to calculate bids for submission because profitable contracts are founded upon successful bids. We therefore conclude that Staff Pro presented evidence that in calculating bids it followed the pricing methodology initially developed by Meredith and Neumann and continued in use by Masotti.
CSC next urges that Staff Pro failed to meet its burden of persuasion because Staff Pro’s own discovery responses revealed that Staff Pro “had no clue whether the methodology was always used in preparing bids.” The only evidence cited to support this proposition is a fragment of Masotti’s deposition testimony. CSC takes the testimony out of context. In the small portion of the deposition testimony furnished by CSC (only 4 pages), Masotti was questioned whether Staff Pro submitted a response to every bid request it received and whether it ever submitted bids without being formally requested to do so. Counsel asked Masotti: “Would the number of bids that Staff Pro submits be roughly the same as the number of requests for proposal that Staff Pro receives?” Masotti replied: “There does not necessarily have to be a correlation of that, because we could bid a job without getting a request for proposal because they don’t have requests for proposal, formal requests for proposal.” The following colloquy then occurred:
“Q Let me ask it this way. Going back to March 29, 1997, can you estimate the number of bids that Staff Pro has submitted to various facilities?
“A I couldn’t estimate that, no.
“Q Say in the past year?
“A No.
“Q Would it be more than ten?
“A Again, I would not have any idea because, necessarily – I don’t necessarily get involved in them.” (Italics added.)
CSC argues that Masotti’s italicized comment establishes, or, at least, suggests, that he (or Staff Pro) did not know whether the pricing methodology was used to formulate bids. We disagree. Masotti simply indicated that he did not know how many bids Staff Pro had submitted because he was not “necessarily” involved in calculating each and every bid. Because Masotti’s declaration did not include any averment that he was personally involved in formulating every bid, nothing in his testimony conflicts with his declaration. Further, nothing in Masotti’s deposition testimony contradicts Meredith’s unequivocal assertion that the methodology “has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” CSC’s argument that “the evidence showed that such methodology was not followed, let alone always followed” is based upon speculation and conjecture and therefore is insufficient to demonstrate the existence of a triable issue of material fact. “When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.” (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)
CSC next claims that evidence contained in its Separate Statement of Highly Confidential Facts created a triable issue of material fact. Because much of that evidence consisted of Staff Pro documents that CSC obtained during discovery, CSC claims that “Staff Pro’s own documents [detail] below cost sales and admissions of intent to sell below cost.” In addition, CSC argues that the declarations of David Simon (CSC’s attorney) and Jack Zuckerman (a forensic accountant retained by CSC) offered as part of its Separate Statement of Highly Confidential Facts contradict the Meredith, Neumann and Masotti declarations. CSC’s arguments have been forfeited for two separate reasons.
The first reason is that CSC has failed to comply with California Rules of Court, rule 8.204(a)(1)(C) which requires a party to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” CSC has merely cited to its Separate Statement of Highly Confidential Facts but has failed to identify where in those 572 pages the Simon and Zuckerman declarations and the Staff Pro documents it claims establish that Staff Pro submitted below-cost bids appear.
“The separate statement is not itself evidence of anything. It is mere assertion. The evidence of the asserted facts appears elsewhere[.] [CSC’s] brief should have cited to those pages in addition to the separate statement of disputed facts.” (Stockinger v. Feather River Community College, supra, 111 Cal.App.4th at pp. 1024-1025.) CSC’s failure to do so constitutes a forfeiture of its claim that the declarations or the Staff Pro documents created a triable issue of material fact. This is because our obligation to conduct a “de novo review [of the trial court’s grant of summary adjudication] does not obligate us to cull the record for the benefit of the appellant [here, CSC] in order to attempt to uncover requisite triable issues.... [R]eview is limited to issues which have been adequately raised and briefed.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
In any event, we believe we have located the two declarations referred to by CSC. Simon’s declaration simply purports to authenticate more than 30 documents attached to CSC’s motion. Zuckerman’s declaration primarily averred that, in his opinion, Staff Pro engaged in ghost billing. In that context, Zuckerman also opined that “Staff Pro engages in sales of its event staffing services at rates below its costs.” However, Zuckerman’s opinion on that issue was based largely upon stricken evidence and therefore does not establish a triable issue of material fact.
The stricken evidence, offered as Exhibit P in CSC’s Separate Statement of Highly Confidential Facts, was five pages of an internal Staff Pro memorandum entitled “2000-2001 Management Meeting Re-Cap.” Its introductory paragraph described it as “a re-cap in outline form” of management meetings held the previous week. CSC claimed that the document represented Staff Pro’s actual costs of services.
The second reason that the argument is forfeited is that to the extent CSC relies upon the Zuckerman declaration, CSC’s Separate Statement of Undisputed Facts (SSUF) never directed the trial court to that particular declaration notwithstanding CSC’s specific citation to other evidence found in its Separate Statement of Highly Confidential Facts. “In opposing a defendant’s motion for summary judgment, the plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. [Citations.] Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts. [Citation.] When a fact upon which plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court; the court does not have the burden to conduct a search for facts that counsel failed to bring out. [Citation.]” (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116, italics added.) The fact that CSC’s memorandum opposing Staff Pro’s motion referenced Zuckerman’s declaration does not change this conclusion. As we explained in Blackman v. Burrows (1987) 193 Cal.App.3d 889, “[i]t is no answer to say that the facts in [the plaintiff’s] memorandum of points and authorities filed in opposition to the motion constituted compliance with the separate statement requirement. Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.” (Id. at p. 894; see also Cal. Rules of Court, rule 3.1350(h) [setting forth precise format for an opposing separate statement].) Because CSC’s SSUF did not direct the trial court’s attention to Zuckerman’s declaration, CSC cannot rely upon that declaration to argue that the trial court erred in concluding that CSC had failed to meet its burden to establish the existence of a triable issue of fact. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31.)
The trial court’s lengthy minute order granting summary adjudication to Staff Pro did not address the Zuckerman declaration. It therefore appears that it did not consider the declaration. CSC’s briefs do not acknowledge the deficiency in their trial court presentation or present any argument or analysis to excuse it.
C. The Trial Court Properly Denied CSC’s Motion for Reconsideration of Its Grant of Staff Pro’s Motion for Summary Adjudication
1. CSC’s Motion for Reconsideration
CSC filed a timely motion for reconsideration of the grant of summary adjudication in favor of Staff Pro. CSC offered 250 pages of discovery (answers to interrogatories, declarations, documents, etc.) that it had received from Staff Pro after the trial court granted Staff Pro’s motion. CSC urged that the new evidence established a triable issue of material fact because it was “prima facie evidence of [Staff Pro’s] intent or purpose to injure competition and directly challenge[s] the credibility of the [three Staff Pro] declarations relied upon by the court in granting summary adjudication.” (Capitalization and boldface omitted.)
By way of example, CSC submitted Staff Pro’s response to special interrogatory number 4. CSC based its special interrogatory number 4 upon Staff Pro’s response to a prior interrogatory in which Staff Pro stated that in 1997 it had not submitted below-cost bids. Building upon that response, CSC’s special interrogatory number 4 asked Staff Pro to state the amount of its estimated costs for 1997. Staff Pro responded:
“Unknown. Staff Pro’s former Chief Financial Officer, Edward Masotti, retired from Staff Pro shortly after his February 9, 2005 Declaration was signed. Mr. Masotti did not leave behind any notes, documents or computer files which would indicate what estimated costs he may have used in bidding on event staffing contracts in Los Angeles and Orange Counties in the subject year and Staff Pro is not aware of any document which would provide this answer. It is not the custom and practice of Staff Pro to keep back up documents or notes (if any) after its bids for event staffing contracts have been prepared and submitted. Under the circumstances, it is impossible to know what exact estimated costs were used by Mr. Masotti for any particular contract, or if the same cost figure was used on every contract in Los Angeles and Orange Counties.
“In paragraph 4 of his February 9, 2005 Declaration, Mr. Masotti merely stated that in preparing a bid for an individual event contract, he followed a ‘methodology’ that would take into consideration Staff Pro’s direct labor pay rate, ‘burden, ’ consisting of employer payroll taxes, unemployment compensation insurance and workers compensation insurance, to which he would add a gross profit figure of 25 to 30% and that, based on his experience as a CFO, he was ‘confident’ such a methodology would result in a profitable contract, barring unforeseen events. Mr. Masotti’s Declaration was offered, not to set forth the amount of Staff Pro’s estimated costs, but to demonstrate that by employing a methodology of contract bidding that was rationally based, Staff Pro did not knowingly bid an event contract below its costs or act with the specific intent to harm either CSC or competition within the event staffing industry.”
CSC’s special interrogatory number 23 asked Staff Pro to state whether its contracts for 1997 were profitable using the methodology set forth in Masotti’s declaration. Staff Pro responded, in relevant part:
“Unknown. Staff Pro did not keep track of the profitability or unprofitability of each and every contract in Los Angeles and Orange Counties in the subject year. Rather, Staff Pro’s financial statement would show whether Staff Pro made or lost money at the end of its fiscal year. As Staff Pro made a profit at the end of its fiscal year ending May 31, 1997, Staff Pro rationally assumes that the majority, if not every event staffing contract performed in Los Angeles and Orange Counties in 1997, was profitable.”
2. The Trial Court Denies CSC’s Motion for Reconsideration
After finding that CSC’s motion for reconsideration was timely and “supported by ‘new’ facts, in the form of discovery responses provided by Staff Pro after [the summary adjudication motion] had been briefed, argued, and submitted, ” the trial court ruled that CSC had “failed to present any evidence sufficient to raise a triable issue of fact on Staff Pro’s Motion.” Its minute order explains:
“The Court rules that to the extent Staff Pro engaged in any below-costs sales, CSC must prove that it did so with the express purpose of damaging or destroying competition. [Citation.]
“Cory Meredith had stated in his declaration that Staff Pro didn’t intend to injure competition. The company has no policy of pricing below cost, and did not intend to destroy CSC. The Court earlier ruled that Staff Pro’s former Chief Financial Officers (Wayne Neumann and Edward Masotti) had described Staff Pro’s pricing methodology, which was designed and intended to provide for the company’s profitable operation. Its bids included a 25-30% gross profit figure, which it found adequate to cover costs and result in a profit to the company. CSC submitted no evidence to the contrary. Therefore, Staff Pro was entitled to summary adjudication of the first cause of action on that basis.
“CSC contends that Staff Pro’s response to special interrogatory #4 creates a triable issue of fact. Staff Pro was asked, if it contends that its pricing and/or rates were not below cost, to state its contention as to the amount of its estimated costs in the LA and Orange County areas for the year 1997.
“Staff Pro responded, in part, ‘unknown.’ Staff Pro explained that Masotti had retired, and did not leave behind notes, documents or files which would indicate what estimated costs he might have used in bidding on event staffing contracts in the subject year, and Staff Pro was not aware of any particular document that would supply the answer.
“CSC’s problem is that Masotti described a pricing methodology. He did not say anything about what estimated costs were at any given time.
“The response to interrogatory #4 does not create a triable issue of fact as to the purpose of the methodology employed.
“Moreover, an incomplete or evasive discovery response is not evidence that Staff Pro acted with the specific purpose to injure CSC or damage competition. Staff Pro established in its Motion that, in submitting bids, it employed a pricing methodology which was designed and intended to provide for the company’s profitable operation. Simply stated, CSC points to no new evidence to raise a triable issue of fact on this critical point – that is, CSC does not raise a triable issue of fact as to whether Staff Pro acted with the specific purpose to injure CSC or damage competition in its pricing, or a triable issue of fact as to whether Staff Pro employed a pricing methodology which was designed and intended to provide for the company’s profitable operation.
“CSC has failed to point to any specific discovery response, deposition statement, or document provided in the course of discovery, that raises a triable issue of fact as to the basis for the Court’s prior ruling.”
3. The Trial Court Properly Denied CSC’s Motion for Reconsideration
CSC’s opening brief contains a passing argument that the evidence it submitted in support of its motion for reconsideration “demonstrated that there was a triable issue of fact with regard to the purpose element [e.g., whether Staff Pro acted with the purpose to injure or destroy competition]. [¶] The discovery responses essentially said Staff Pro did not know if it ever used, followed, or made a profit using the ‘methodology’ described by Neumann and Masotti.” Although CSC’s reconsideration motion included 250 pages of documents to support its claim, CSC’s opening brief cites to only a fragment of that evidence: Staff Pro’s responses to special interrogatories No. 4 and 23 set forth above. We therefore confine our discussion to those items because it is not our obligation to search the record for evidence to support an appellant’s contention. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.)
In a footnote in its opening brief, CSC states: “Although not discussed at length herein, the Declaration of Suzanne Thoreson dated October 31, 2005 attached to the Motion for Reconsideration also created a triable issue of fact of the purpose of Staff Pro.” CSC gives no page citation(s) for this declaration, does not summarize its contents, and advances no fact-specific argument as to how or why the declaration warranted grant of its motion. The argument is therefore forfeited. (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116.)
CSC argues that Staff Pro’s responses to the two interrogatories “contradict Staff Pro’s assertions that the Declaration[s] of Neumann and Masotti show that the use of the methodology proves that Staff Pro did not act with the purpose of destroying the competition or its competitor. They show, instead, a triable issue of fact.” We disagree. The declarations from Neumann and Masotti explained the methodology to compute a bid on a job that, if accepted, would yield a profit for Staff Pro. Neither declarant addressed what Staff Pro’s costs were at any given time or what profit it gained on an individual contact. Consequently, Staff Pro’s inability in those particular discovery responses to indicate its costs and profits on the contracts it performed in 1997 sheds no light on whether it submitted bids that year or any later year for the purpose of injuring or destroying competition. Further, nothing in those responses contradicts Meredith’s claim that Staff Pro consistently used the bidding methodology set forth in the Neumann and Masotti declarations. In sum, CSC’s evidence offered in its reconsideration motion failed to discharge it burden to establish a triable issue of material fact.
II. STAFF PRO’S MOTION TO DISMISS CSC’S SECOND CAUSE OF ACTION FOR LACK OF STANDING
A. Factual and Procedural Background
1. CSC’s First Amended Complaint
The second cause of action in CSC’s first amended complaint alleged that Staff Pro “developed a number of improper and fraudulent schemes” in violation of the UCL. Insofar as is relevant to this appeal, CSC alleged that “[i]n order to increase the revenues of Staff Pro..., Staff Pro... devised a scheme whereby the expenses of Staff Pro would be falsely and fraudulently inflated. This scheme, referred to as ‘ghost billing, ’ allowed Staff Pro... to generate illicit profits and thereby subsidize its below cost pricing to [the venues it serviced] to the detriment of plaintiff CSC. Staff Pro... generate[d] illicit profit through this ‘ghost billing’ practice by charging client venues for the services of Staff Pro employees, ‘ghosts, ’ who do not actually perform the services for which the client is charged.” CSC alleged Staff Pro’s actions had injured CSC “in its business and property, the General Public, certain venues and facilities, and similarly situated competitors of [CSC]” and that CSC was suing “on behalf of itself, and, in a representative capacity pursuant to Business and Professions Code § 17204, the General Public, the relevant venues and facilities, and similarly situated competitors.” CSC sought injunctive relief to prohibit Staff Pro from engaging in ghost billing and for “an order of disgorgement of profits and gains unjustly earned by [Staff Pro] through wrongful conduct and unfair business practices.” CSC has since abandoned any claim for damages and restitution and now seeks only injunctive relief.
2. Staff Pro’s Demurrer
In December 2001, Staff Pro challenged the allegations of the second cause of action by filing a demurrer. The demurrer asserted, in part, that CSC lacked standing to sue on behalf of the venues that were the victims of Staff Pro’s alleged ghost billing. In February 2002, the trial court overruled the demurrer. Its minute order explained, in relevant part: “Contrary to [Staff Pro’s] arguments, [CSC] does have standing. Essentially, anyone has standing to sue anyone for a section 17200 violation. [Citation.] A strong argument can be made that this [is] bad law; however that argument should be made to the state Legislature.”
3. Staff Pro’s Motion for Summary Adjudication
In 2004, Staff Pro moved for summary adjudication, urging that CSC lacked standing to raise its claim of ghost billing. Staff Pro’s motion was filed before the electorate passed Proposition 64 which, as will be explained below, materially changed the rules of standing regarding claims of unfair competition. The trial court denied Staff Pro’s motion two weeks after Proposition 64’s enactment. Its minute order explained: “Staff Pro fails to demonstrate that CSC did not suffer an injury in fact as a result of Staff Pro’s alleged violations of B&P § 17200. In other words, [Staff Pro] has failed to meet its burden (as the moving party) of demonstrating that CSC did not lose any particular contract as the result of Staff Pro’s alleged misconduct (the merits of which the motion does not address). However, the recent passage of Proposition 64 precludes CSC from pursuing claims on behalf of the general public, or anybody other than itself. [¶] Thus, at trial, in order to obtain the requested injunctive relief [to prohibit Staff Pro from engaging in ghost billing], CSC will have to prove that it suffered an injury in fact-an actual loss of money or property-in order to prevail on its B&P § 17200 claim. See B&P §§ 17203-17204, as amended by Prop. 64.”
4. Staff Pro’s Application to File a Motion to Dismiss
In April 2006, Staff Pro sought leave of court to file a motion to dismiss the second cause of action, the initial law and motion cut-off date having passed two months earlier. Staff Pro contended that CSC lacked standing to complain about Staff Pro’s alleged ghost billing. Staff Pro argued that approximately seven weeks earlier, it had, for the first time, deposed Zuckerman, one of CSC’s forensic accountants. Zuckerman had testified that CSC’s only claim for monetary damages was the “alleged lost profits which CSC believes it would have earned had it been awarded those event staffing contracts which CSC contends were awarded to Staff Pro instead [because of Staff Pro’s ghost billing scheme].” Zuckerman explained that he would testify at trial that as a result of the ghost billing, CSC “lost the market share and suffered an injury to the competition.” Staff Pro urged that as a matter of law CSC’s claim of lost profits was insufficient to give it standing to assert a violation of section 17204 as amended by Proposition 64.
By this time, the trial court had granted Staff Pro’s motion for summary adjudication of CSC’s cause of action for below-cost bidding and had denied on the merits CSC’s motion to reconsider that ruling.
CSC opposed Staff Pro’s request. It urged that Staff Pro had twice unsuccessfully litigated the issue of standing, first by demurrer and then by a motion for summary adjudication; that there was no statutory basis to bring a motion to dismiss based upon the claim that a plaintiff lacked standing; and that Staff Pro was simply “trying to bring another summary judgment motion under another name.”
The trial court found good cause to grant Staff Pro’s application for leave to file the motion to dismiss. At the hearing conducted on the application, the court stated that if it, “in fact, does not have the jurisdiction under the particular facts and circumstances to provide any effective remedy, ... what use is there of going forward with the matter and having the parties spend many thousands of additional dollars for trial?” The court explained it would exercise its “discretion to allow the motion to be calendared on full notice, of course, and go forward and hear the arguments from both sides and make a decision as to whether it is, in fact, a repeat of the summary judgment motion or is it really a motion that tests whether the court has jurisdiction to grant CSC any relief under that particular theory.”
5. The Motion to Dismiss
In May 2006, Staff Pro filed its motion to dismiss. The motion included Zuckerman’s report which had concluded that CSC had “incurred lost incremental profits” as a result of Staff Pro’s ghost billing. Staff Pro argued that CSC’s claim for the lost profits it would have allegedly earned was insufficient as a matter of law to establish the “injury in fact” required for standing under section 17204.
In June 2006, CSC filed opposition to the motion to dismiss. It argued Staff Pro’s motion to dismiss was an improper attempt to re-litigate an issue upon which Staff Pro had twice failed to prevail. CSC also claimed that it was “an open question” whether Proposition 64 would be applied retroactively, but that in any event CSC had established standing. To that end, CSC tendered five declarations to support its claim it had suffered an “injury in fact.” The first declaration was from Alan De Zon whose job included deciding which event staffing company would provide services at several named venues. He averred that he had met with CSC personnel “several times since 1998” and had told them he would “give CSC its business at the Verizon Wireless Amphitheater and the Hyundai Pavilion, if CSC could simply match Staff Pro, Inc.’s rates.” The second declaration was from Granger, CSC’s vice-president, who averred that CSC “lost business and profits” as a result of Staff Pro’s practices. The third declaration was from Zuckerman. Zuckerman averred that Staff Pro’s ghost billing permitted Staff Pro to provide a lower bid for an event because it substantially reduced its labor costs, resulting in an injury to CSC in the form of lost business and reduced market share. The fourth declaration was from Jurg Mattman, the president of a security management consulting firm. Based upon his “involvement, review and work in this case, ” Mattman had formed “the expert opinion” that Staff Pro had engaged in unfair business practices, including ghost billing. The fifth declaration was from Darell Salyers. Salyers had worked for Staff Pro “from 1986 through about 1990” but was fired because he purportedly refused to participate in ghost billing. He subsequently formed a company that provides security personnel in the event staffing industry. On occasion, his company has provided subcontract labor to Staff Pro and, according to him, “[t]here were instances” in which Staff Pro would ghost bill for non-working employees.
Staff Pro’s reply to CSC’s opposition reiterated that CSC’s claim of lost profits was insufficient to confer standing. In addition, Staff Pro filed evidentiary objections to the five declarations CSC had proffered. Staff Pro sought to strike those portions of the declarations that CSC relied upon to claim that Staff Pro’s ghost billing resulted in lost contracts or business opportunities. The objections included vague and ambiguous, hearsay, speculation, lack of foundation and improper expert opinion.
On July 7, 2006, the trial court conducted a hearing on Staff Pro’s motion to dismiss. Its tentative ruling indicated it would deny the motion because it was procedurally improper. The court believed that neither statutory nor decisional law supported a motion to dismiss based on lack of standing so that Staff Pro’s motion was an improper attempt to bring another summary adjudication motion. At the hearing, Staff Pro argued its motion was procedurally proper for a variety of reasons. The court stated it would take the matter under submission to consider the issue further. In addition, the court sustained all of Staff Pro’s evidentiary objections to CSC’s declarations.
6. Supplemental Briefing on the Motion to Dismiss
Several weeks later, Staff Pro sought leave to file a supplemental brief to address new decisional law relevant to its motion to dismiss. The trial court granted the request.
Staff Pro’s supplemental memorandum relied on two recently decided cases. The first was Californians for Disability Rights v. Mervyn’s, LCC (2006) 39 Cal.4th 223 (Mervyn’s) which held that Proposition 64 applied to all pending cases. The second was Anza v. Ideal Steel Supply Corp. (2006) 547 U.S. 451 (Anza) which discussed the requirement of standing under a federal statutory scheme.
CSC’s supplemental opposition continued to argue that Staff Pro’s motion to dismiss was procedurally improper. In addition, CSC argued that it did have standing. In the body of its 16-page opposition, CSC stated: “If the Court finds that the injury alleged is not sufficient, Plaintiff respectfully requests leave to amend to further plead the standing and injury elements in light of the new developments in the law post filing of this action.” (Boldface in original.) However, CSC neither specified how it would amend its complaint nor attached a copy of a proposed (second) amended complaint. The last paragraph in its opposition asked the court to deny the motion to dismiss “or in the alternative, grant leave to amend to Plaintiff to adequately plead the elements in light of Proposition 64.” Lastly, in a footnote, CSC argued that the trial court had erred in sustaining Staff Pro’s objections to its five declarations, particularly the declaration from De Zon. CSC’s footnote offered no legal authority for this argument.
7. The Trial Court’s Ruling
The trial court granted Staff Pro’s motion to dismiss. Its detailed 8-page order explains, in relevant part:
“The issue is one of standing: whether CSC has standing under B&P § 17204 to pursue its claim against Staff Pro. The court finds that CSC does not have standing to pursue the claims alleged.
“On November 2, 2004, California voters passed Proposition 64, amending California Business & Professions Code § 17204. The most significant change involved who has standing to bring a § 17200 claim. Section 1(e) of the law, Findings and Declarations of Purpose, provides, ‘[i]t is the intent of the California voters in enacting this act to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.’
“Section 17204 was specifically amended to provide that actions for relief must only be bought by one ‘who has suffered injury in fact and has lost money or property as a result of such unfair competition.’
“Therefore, in order to have standing, a § 17200 plaintiff must: (1) meet the Article III standing requirements under the United States Constitution, and (2) have actually lost money or property as a result of the allegedly offending conduct.
“The ‘irreducible constitutional minimum of standing’ under Article III contains three elements: (1) injury in fact; (2) causation; and (3) likelihood that a favorable decision will redress the injury. [Citations.]
“To satisfy Article III standing requirements, a plaintiff must show that: (1) plaintiff has suffered ‘injury in fact’ that is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. [Citations.]....
“In this case, the sole remaining issue involves ‘ghost billing.’
“Staff Pro’s alleged ghost billing of event venues does not directly harm CSC. The harm is suffered by the customers of Staff Pro, who wind up paying for work that was not done, or for workers who did not work. To the extent that CSC suffers any injury, it is too attenuated and speculative to give it standing to sue. CSC’s theory is that if Staff Pro wasn’t engaged in ghost billing, it would have to charge more for its services to maintain the same profit margin, and that might mean that Staff Pro wouldn’t have been the low bidder for event staffing services at the Verizon Wireless Amphitheater, in which case the contract might have gone to CSC instead if it turned out that Staff Pro’s hypothetical bid (without anticipated ghost billing) was more than CSC’s bid.
“This hypothetical ‘injury’ that Plaintiff might have suffered does not constitute a loss of money or property cognizable under § 17204. Plaintiff didn’t lose anything. At most, Staff Pro’s conduct did nothing more than decrease the odds of CSC being awarded a future contract. CSC suffered no pecuniary harm. Staff Pro’s conduct did not take money out of CSC’s coffers, nor did it cause CSC to lose any property. CSC suffered only a diminished opportunity for future profits.
“This does not constitute an injury in fact that flows from that which makes the conduct unlawful. CSC’s injury is not concrete and particularized; [it] is conjectural or hypothetical; and not necessarily traceable to the challenged action of the Staff Pro. Furthermore, whether this injury would be redressed by a favorable decision on its § 17200 claim is speculative, as there is no way of knowing how Staff Pro would price its event staffing services if it weren’t engaged in ghost billing, and trying to figure out whether CSC would be awarded more event staffing contracts if Staff Pro had a different price structure such that an injunction would prevent CSC from suffering future (speculative) harm is nothing more than idle conjecture.
“CSC submits a declaration [from De Zon] tending to indicate that it would have been awarded an event staffing contract at the Verizon Wireless Amphitheater if it offered the same price as Staff Pro, but this does nothing to establish whether Staff Pro and CSC would offer the exact same pricing (or whether CSC’s price would be lower) if Staff Pro were not engaged in ghost billing....
“Here, Plaintiff CSC is suing because Staff Pro alleged[ly] defrauded its customers (event venues) through ghost billing, and then using the proceeds of its ghost billing to allow it to offer lower prices to the event venues in order to attract more customers. The direct victims of Staff Pro’s alleged conduct are the event venues themselves, which are being ghost billed, not CSC. The cause of CSC’s asserted injury (lost opportunity) was caused by a set of actions (Staff Pro’s offering of lower rates) entirely distinct from the alleged § 17200 violation (ghost billing). There is an absence of causation; CSC has not suffered a loss of money or property that was caused by Staff Pro’s conduct.
“Consequently, Staff Pro’s motion to dismiss is granted. The victims of Staff Pro’s alleged ghost billing are the venue operators who are paying the ghost bills, not Plaintiff. Plaintiff CSC lacks standing under B&P § 17204 to pursue the claims alleged against Defendant Staff Pro.” (Italics added.)
B. Discussion
1. The Motion to Dismiss Was Procedurally Proper
CSC contends that Staff Pro’s motion to dismiss was procedurally improper. CSC characterizes it as “a speaking Motion to Dismiss for lack of standing, a vehicle which is neither recognized nor permitted by either statute or case law.” CSC argues that Staff Pro’s motion “should have been brought as a motion for summary adjudication in compliance with the governing statute” and that Staff Pro’s failure to do “violated CSC’s due process rights.” (Capitalization omitted.) We are not persuaded.
Throughout its briefs, CSC relies on the trial court’s tentative ruling posted before the July 7, 2006 hearing in which the trial court indicated that it believed that Staff Pro’s motion was procedurally improper. “[CSC] argues the trial court had it right in its tentative opinion. The trial court’s tentative opinion has no relevance on appeal. [Citation.]” (Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9.) The issue is whether its ultimate ruling was correct. As will be explained, it was.
Standing affects the right to sue and therefore goes to the existence of a cause of action against a defendant. (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) Consequently, lack of standing is treated as a jurisdictional defect that can be raised at any time in the proceeding, including at trial or in an appeal. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438-439; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345; Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 813.)
In light of these principles, CSC’s insistence that lack of standing can be raised only by a statutorily authorized motion such as a demurrer or motion for summary adjudication is not persuasive. That result would needlessly constrain the trial court from reaching the issue of standing–an issue that can be raised at any time, including for the first time on appeal-simply because the time for bringing a statutory motion has run. This case demonstrates the folly of such an approach. When CSC filed its lawsuit and the trial court ruled upon Staff Pro’s demurrer based on lack of standing, the law of standing was materially different because Proposition 64 had not been enacted. And although Proposition 64 was in effect when the trial court ruled upon Staff Pro’s summary adjudication motion, it had been passed only two weeks prior. The proposition’s language had not been judicially interpreted and its application to lawsuits filed before its enactment had not been decided. However, by the time the trial court ruled upon Staff Pro’s motion to dismiss, those issues had been resolved. Given that context, we conclude the trial court did have the inherent power to consider and rule upon the question of standing even though Staff Pro raised it through a non-statutory motion to dismiss. (See § 581, subd. (m) [statutory enumerations of the trial court’s power to dismiss are not “an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant”] and Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 757-765 [trial court retains broad inherent powers to dismiss].)
CSC’s claim that its due process rights were violated by this procedure is not persuasive. The parties were given more than ample opportunity to brief the issue of standing and CSC, which submitted two detailed opposition pleadings (including one supported by five declarations), never claimed to the contrary. The trial court conducted a reported hearing at which counsel vigorously argued their respective positions. And most significantly, the trial court’s ruling indicates that for purposes of ruling upon Staff Pro’s motion to dismiss, it viewed the evidence in the light most favorable to CSC. That is, the trial court accepted CSC’s claim that Staff Pro engaged in ghost billing as well as the claim in De Zon’s declaration that he would have offered contracts to CSC if CSC could meet Staff Pro’s bids. Based upon those facts as presented by CSC, the court addressed whether CSC’s claim of lost contracts provided it with standing. Since CSC has never suggested either in the trial court or on this appeal what other evidence it would have offered to establish standing, we fail to see how CSC’s due process rights were impinged by permitting Staff Pro to litigate the issue as it did. (See People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 424 [“standing is a threshold question of law for the trial court where the matter can be determined on the undisputed facts”].)
As noted earlier, although the trial court had sustained Staff Pro’s objections to De Zon’s declaration, it later referenced the declaration in its ruling on the motion to dismiss. The ruling does not expressly indicate that the court had reconsidered its sustaining of the objections although CSC’s supplemental opposition had, without citation to any authority, urged the ruling was error.
CSC’s appellate argument that Staff Pro should have pursued the issue through a motion for summary adjudication is disingenuous given that CSC’s position in the trial court was that Staff Pro’s motion to dismiss was an improper attempt to bring a second motion for summary adjudication. In any event, as explained above, CSC has failed to explain how either party’s presentation or the trial court’s ruling would have been different had Staff Pro used the vehicle of a motion for summary adjudication instead of a motion to dismiss.
2. The Trial Court Correctly Ruled that CSC Lacked Standing
Proposition 64 explicitly amended Business and Professions Code section 17204 (section 17204) to limit who could bring an action based upon a claim of unfair competition. Insofar as is relevant to this case, section 17204 now provides that the lawsuit must be brought “by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” (§ 17204.) This provision applies to pending cases, such as this one, filed before Proposition 64’s enactment. (Mervyn’s, supra, 39 Cal.4th at pp. 228-233.)
As we explained in Buckland v. Threshold Enterprises, Ltd., supra, 155 Cal.App.4th 798, “[t]o interpret the term ‘injury in fact, ’ we look to the language of Proposition 64 itself. In approving Proposition 64, the voters declared their intent ‘to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution.’ (Prop. 64, § 1, (e), italics added.) We therefore examine those requirements.
“As the United States Supreme Court explained in Havens Realty Corp. v. Coleman (1982) 455 U.S. 363, 372 (Havens), article III of the United States Constitution obliges plaintiffs in federal courts to show, at a minimum, an ‘injury in fact, ’ that is, ‘as a result of the defendant’s actions [they have] suffered “a distinct and palpable injury.”’ (Quoting Warth v. Seldin (1975) 422 U.S. 490, 501.) The requisite injury is defined as ‘an invasion of a legally protected interest which is (a) concrete and particularized, [citations] and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical, ’” [citations].’ (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560, fn. omitted.)” (Buckland v. Threshold Enterprises, Ltd., supra, 155 Cal.App.4th at p. 814, fn. omitted.)
Stated another way, “for [CSC] to have standing to prosecute the UCL claim in this case, [it] must have personally suffered an invasion or injury to a legally protected interest.” (Troyk v. Farmers Group, Inc., supra, 171 Cal.App.4th at p. 1346.) In fact, the new standing requirements in section 17204 “appear to be more stringent than the federal standing requirements. Whereas a federal plaintiff’s ‘injury in fact’ may be intangible and need not involve lost money or property, Proposition 64, in effect, added a requirement that a UCL plaintiff’s ‘injury in fact’ specifically involve ‘lost money or property.’ [Citation.]” (Id. at p. 1348, fn. 31.)
Decisional law interpreting Proposition 64 has concluded that a plaintiff has suffered an “injury in fact” when, as a result of the defendant’s act of unfair competition, it has expended money, lost money or property, or been denied money to which it had a cognizable claim. (Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 854-855, and cases cited therein.)
Here, CSC has not claimed an “injury in fact” based upon any of the definitions set forth in the preceding paragraph. Instead, CSC identifies its “injury in fact” as the contracts it failed to obtain, a loss CSC claims was caused by Staff Pro’s ghost billing. The trial court found this was not “a distinct and palpable injury” sufficient to give CSC standing to sue Staff Pro for injunctive relief to prohibit further ghost billing. We agree with the trial court. Assuming arguendo that Staff Pro did engage in ghost billing, the parties who suffered an “injury in fact” as a result of that practice are the venues Staff Pro ghost billed because they paid Staff Pro for services they never received. CSC’s link, on the other hand, to the ghost billing is much more attenuated. CSC claims that Staff Pro’s ghost billing enabled Staff Pro to submit bids that CSC could not match and, as a result, CSC lost business. Given that standing under article III of the federal constitution-a rule of standing explicitly embraced by Proposition 64’s amendment to section 17204-requires an injury “‘fairly... trace[able] to the challenged action of the defendant [here, Staff Pro]’” (Lujan v. Defenders of Wildlife, supra, 504 U.S. at p. 560), CSC’s theory of standing fails. It assumes that the reason that CSC did not win contracts is because Staff Pro’s ghost billing allowed it to submit the lowest bid. This speculative theory lacks evidentiary support. Nothing in the record suggests what Staff Pro’s bids would have been had it not engaged in ghost billing, or more importantly, whether CSC would have been able to meet those bids and obtain contracts. (See Hall v. Time Inc., supra, 158 Cal.App.4th at pp. 855-858 [the plaintiff bears the burden of proving causation to have standing under section 17204]; Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1099 [“[T]here must be a causal connection between the harm suffered and the unlawful business activity”].)
To a large extent, CSC relies upon the Zuckerman and Mattman declarations it submitted in opposition to the motion to dismiss to argue that there is evidence that if Staff Pro had not ghost billed, CSC would have been able to make competitive bids that would have resulted in contracts. This approach is not persuasive because the trial court sustained Staff Pro’s objections to the portions of those declarations upon which CSC relies. CSC’s briefs contain only a passing acknowledgement of that ruling and offer no legal argument why that ruling was an abuse of discretion. This deficient presentation constitutes a forfeiture of any claim that the trial court’s evidentiary ruling was error and therefore precludes us from considering the stricken evidence in evaluating CSC’s appellate contention. (See Golden Day Schools, Inc. v. Department of Education, supra, 69 Cal.App.4th at p. 695, fn. 9.)
Further, CSC’s reliance upon De Zon’s declaration does not compel a contrary result. Assuming arguendo that De Zon’s declaration is properly before us (see fn. 18, ante), De Zon averred only that he told CSC “several times since 1998, [that he] would give CSC [his] business at [two named venues] if CSC could simply match Staff Pro, Inc.’s rates.” But nothing in the record establishes that CSC would have been able to “match” Staff Pro’s bids if Staff Pro had not engaged in ghost billing. Or stated another way, CSC failed to establish that its failure to submit competitive bids at those two venues was attributable to Staff Pro’s ghost billing.
Lastly, we find that Anza, supra, 547 U.S. 451 is instructive in determining whether Staff Pro’s attempt to gain a competitive advantage over CSC by ghost billing its clients is sufficient to establish that CSC suffered an “injury in fact” and therefore has standing to sue CSC to enjoin the ghost billing practice. Anza involved interpretation of the standing provision of the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 United States Code section 1964, subdivision (c) provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue.” (Italics added.) The plaintiff in Anza, a steel company, sued its competitor, alleging that it was injured by the competitor’s unlawful practice of selling products free of sales tax to cash paying customers. (Id. at p. 454.) The plaintiff alleged that this fraud enabled the competitor “to offer lower prices designed to attract more customers.” (Id. at p. 458.)
The United States Supreme Court found that the plaintiff’s allegations were insufficient to establish standing. First, it noted that the “direct victim of this conduct was the State of New York, not [the plaintiff]. It was the State that was being defrauded and the State that lost tax revenue as a result.” (Ibid.) Second, it found a lack of proximate cause between the defendant’s RICO violation (failure to charge sales tax) and the plaintiff’s injury (lost sales). It reasoned: “The injury [the plaintiff] alleges is its own loss of sales resulting from [the defendant’s] decreased prices for cash-paying customers. [The defendant], however, could have lowered its prices for any number of reasons unconnected to the asserted pattern of fraud. It may have received a cash inflow from some other source or concluded that the additional sales would justify a smaller profit margin. Its lowering of prices in no sense required it to defraud the state tax authority. Likewise, the fact that a company commits tax fraud does not mean the company will lower its prices; the additional cash could go anywhere from asset acquisition to research and development to dividend payouts.... [¶] There is, in addition, a second discontinuity between the RICO violation and the asserted injury. [The plaintiff’s] lost sales could have resulted from factors other than [the defendant’s] alleged acts of fraud. Businesses lose and gain customers for many reasons, and it would require a complex assessment to establish what portion of [the plaintiff’s] lost sales were the product of [the defendant’s] decreased prices.” (Id. at pp. 458-459.)
Although Anza involved a different statutory scheme than that involved in this case, its analysis is nonetheless persuasive on the issue of standing. The statutory standing provisions in the two cases are very similar. In Anza, the plaintiff would have had standing if it had been “injured in [its] business or property” by the defendant’s conduct (18 U.S.C., § 1964, subd. (c)) and here, the plaintiff (CSC) has standing if it has suffered an “injury in fact and has lost money or property” as a result of the defendant’s conduct (Bus. & Prof. Code, § 17204). Further, the core factual allegations in the two cases are quite similar. In both cases, the competitor directly defrauded someone other than the plaintiff. In Anza, it was the State of New York to which the defendant failed to pay sales tax, and in this case it was the venues that Staff Pro billed for employees who never worked. In both instances, the direct victim of the fraudulent practices had standing to sue the perpetrator of the fraud. And most significantly, both the Anza plaintiff and CSC claimed the same injury as a result of a competitor’s fraudulent practice: lost business. But CSC’s claim is as attenuated as that raised by the Anza plaintiff because there is no evidentiary nexus between Staff Pro’s ghost billing practices and CSC’s lost business opportunities. We therefore conclude that CSC has failed to show the requisite “injury in fact, ” the necessary predicate to establish standing. The trial court properly dismissed CSC’s second cause of action.
CSC’s reliance upon Justice Thomas’ dissenting opinion in Anza merits no discussion.
At oral argument, both parties cited our Supreme Court’s very recent decision in Clayworth v. Pfizer, Inc. (July 12, 2010, S166435) ___Cal.4th ____ (Clayworth) to support their respective arguments about standing.
3. CSC Has Failed to Establish It Should Have Been Granted Leave to File a Second Amended Complaint
CSC, in an effort to avoid an affirmance of the trial court’s dismissal order of its second cause of action, contends that “the Trial Court in this case abused its discretion when it denied CSC leave to amend in order to meet the modified standing requirements under the UCL.” We disagree.
For one thing, CSC never formally moved in the trial court for leave to file a second amended complaint. Its request to do so was buried in its supplemental opposition to the motion to dismiss. Even then, CSC did not set forth what it would allege if it was given the opportunity to amend its pleading nor did it tender a copy of a proposed second amended complaint. “It is not up to the [trial] judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.” (Weil & Brown, supra, ¶ 7:130, p. 7(1)-51 to 7(1)-52.) CSC’s deficient presentation below arguably constitutes a forfeiture of its right to raise this point on appeal. (See Cal. Rules of Court, rule 3.1324, setting forth the specific requirements for filing a motion to amend a pleading.)
In any event, even considered on its merits, CSC’s contention fails. In this appeal, CSC still fails to explain how it could amend its complaint to sufficiently allege standing. “It was [CSC’s] burden in the trial court, and it is its burden here, to show that the first amended complaint could be further amended to state a [valid second] cause of action. [Citations.] [CSC] made no such showing in the trial court, and makes none here.” (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 18; compare Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131 [trial court abused its discretion in denying leave to amend because plaintiff identified a named individual who met the new standing requirements of Proposition 64].) No more need be said.
III. DISCOVERY-RELATED RULINGS
In June 2003, the parties stipulated to submit all discovery disputes to retired Judge Eli Chernow as a referee (hereafter the Referee). Because the reference was specific, not general, the Referee’s reports were merely advisory upon the trial court and did not become binding until adopted by the court. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 450.) On this appeal, CSC contends that the trial court abused its discretion in adopting three of the Referee’s recommended orders. We discuss and reject each assignment of error separately.
A. The April 18, 2007 Ruling
1. Factual and Procedural Background
The first contested ruling requires CSC to pay Staff Pro’s reasonable expenses (attorney fees and costs) incurred in re-deposing one of CSC’s experts. It arose from the following circumstances.
In February 2006, the trial court adopted the Referee’s recommended ruling on discovery motions Nos. 14 and 15. Insofar as is relevant, the trial court found that CSC had failed to properly respond to Staff Pro’s Document Demand to disclose the documentary evidence supporting CSC’s allegations that Staff Pro committed unfair business practices. The court issued evidentiary sanctions that limited CSC’s experts to using specifically designated documents as support for their opinions at trial. In addition, the court issued $46,049.28 in monetary sanctions against CSC and its counsel ($41,275.50 in attorney fees and $4,773.78 in costs). We affirmed the imposition of monetary sanctions in a non-published opinion but left for an appeal from the final judgment the issue whether the evidentiary sanctions were an abuse of discretion. (Contemporary Services Corporation, et al., v. Staff Pro, Inc., et al., (Aug. 30, 2007, B189132).)
In May 2006, CSC filed Motion No. 19 to modify the February 2006 ruling. CSC sought to permit its experts to use at trial documents contained in nine notebooks it recently had turned over to Staff Pro. CSC argued that because trial had been continued to August 2006, Staff Pro had ample opportunity to examine those documents. At a hearing conducted on the motion, CSC represented that if the Referee granted its request, it would make its experts available to be re-deposed; that it would pay the reasonable expenses Staff Pro incurred in re-deposing the experts; and that it would immediately pay the previously imposed sanctions award of $46,049.28.
On July 18, the Referee granted CSC’s motion and issued a recommendation to the trial court that it modify its February 2006 order on several conditions. One condition was that CSC pay Staff Pro the reasonable expenses to be incurred in re-deposing CSC’s experts. Another condition was that CSC pay Staff Pro the previously imposed $46,049.28 sanctions.
The Referee’s order provided: “1. CSC shall provide its expert witnesses, at CSC’s expense, for such additional depositions as Staff Pro reasonably requires based on the documents in CSC’s trial exhibit notebooks, and [¶] 2. CSC shall also pay to counsel for Staff Pro such attorneys’ fees and costs as are reasonably required by Staff Pro to conduct the renewed depositions, the preparation therefor and the costs of the reporter’s transcripts.”
On July 20, Staff Pro submitted the Referee’s recommended order to the trial court.
Meanwhile, because trial was scheduled to begin on August 28, Staff Pro deposed one of CSC’s forensic accountants (Pamela Wax-Semus) for three days in July at a cost of $24,816.25. In addition, CSC paid Staff Pro the earlier sanctions award ($46,049.28). At this time, the trial court had taken Staff Pro’s motion to dismiss for lack of standing under submission after having heard argument on July 7.
In October 2006, the trial court granted Staff Pro’s motion to dismiss based on lack of standing. The trial court never formally adopted the Referee’s ruling on CSC’s Motion No. 19.
The trial court’s judgment of dismissal was not entered until March 12, 2007.
Thereafter, CSC rejected Staff Pro’s request that it reimburse it for the $24,816.25 in attorney fees and costs incurred in Wax-Semus’s 3-day deposition. CSC claimed that because the trial court had not formally adopted the Referee’s July 2006 ruling before it dismissed the case, CSC had no obligation to reimburse Staff Pro.
CSC’s refusal to pay prompted Staff Pro to file Motion No. 25 in November 2006 before the Referee to enforce CSC’s obligation. CSC’s opposition urged that the Referee lacked jurisdiction to entertain Staff Pro’s motion. The Referee, after conducting a hearing on February 8, 2007, rejected CSC’s argument. In a March 12, 2007 ruling, the Referee granted Staff Pro’s motion. His ruling explained:
“[Staff Pro’s motion] is not a motion in which one party seeks discovery from another. Rather it is a motion in which one party seeks enforcement of an obligation arising in connection with a prior recommendation from the Discovery Referee. CSC is correct that the Court entered an Order dismissing CSC’s remaining cause of action for unfair competition upon Staff Pro’s Motion to Dismiss before the Court could rule on Proposed Order re Motion No. 19, thus making the matter of whether the Court should adopt the Proposed Order moot. While this might ordinarily support CSC’s position that the Discovery Referee’s recommendation cannot be enforced, this argument does not apply in this case. The obligation to be enforced is not merely the recommendation of the Discovery Referee. The obligation to be enforced was a condition accepted by CSC that permitted the Discovery Referee to make a recommendation more favorable to CSC than if the condition had not been accepted.
“In these circumstances, the Discovery Referee finds that ancillary jurisdiction remains to compel CSC to honor its commitment. The Court cannot let CSC elect to make a commitment to the Court, through the Discovery Referee, induce Staff Pro to rely on the commitment, and then claim that the Court lacks ancillary jurisdiction to enforce it....
“Accordingly, Staff Pro’s Motion No. 25 is granted and Staff Pro is awarded the full amount of fees and costs requested in the amount of $24,816.25.” (Italics added.)
The trial court adopted the Referee’s ruling on April 18.
CSC filed its notice of appeal on May 10. (See fn. 23, ante.)
2. Discussion
CSC contends that the trial court “abused its discretion in adopting the Recommendation of the Discovery Referee” to grant Staff Pro’s Motion No. 25 for the $24,816.25 in attorney fees and costs incurred in re-deposing CSC’s expert Wax-Semus. We find no abuse of discretion. (See Sauer v. Superior Court (1987) 195 Cal.App.3d 213.)
CSC primarily contends that “[t]he Referee did not have ‘ancillary jurisdiction’ to make the recommendation and the [trial] Court did not have such jurisdiction to adopt same.” The predicate of CSC’s contention is the fact that the trial court never formally adopted the Referee’s July 2006 recommendation that the February 2006 discovery order be modified on various conditions (including the provision that CSC reimburse Staff Pro for its reasonable costs of re-deposing its expert witnesses) before it granted Staff Pro’s motion to dismiss. CSC’s argument is not persuasive.
Dismissal of an action “does not divest the trial court of jurisdiction to consider matters ancillary to the underlying action.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290 [jurisdiction to consider an application for attorney fees under § 1021.5]; see also Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 834 [although a final judgment exists, the trial court has jurisdiction to “deal with and dispose of maters which can be classified as ‘ancillary and collateral’ to the judgment” such as an application for attorney fees].)
For instance, in Day v. Collingwood (2006) 144 Cal.App.4th 1116, the trial court entered a judgment of dismissal in the defendant’s favor after it granted his summary judgment motion. Thereafter, the defendant filed a motion for sanctions. (Id. at p. 1120.) The appellate court concluded that the trial court had jurisdiction to entertain the motion. It reasoned that the request was “a collateral proceeding” because it was “not directly based on the merits of the underlying proceeding [and the] trial court’s consideration of a postjudgment sanctions request does not undermine the finality of the merits of the judgment.” (Id. at p. 1125.)
By a parity of reasoning, the Referee had jurisdiction to consider and grant Staff Pro’s Motion No. 25 and the trial court had jurisdiction to adopt that ruling. The motion did not involve the merits of the dismissed action, but, instead, addressed a collateral or ancillary matter: CSC’s obligation to honor a promise it had made in May 2006 to pay Staff Pro’s reasonable expenses of re-deposing its expert witness. CSC’s promise was part of the quid pro quo it offered to the Referee in exchange for his recommendation to the trial court to modify the February 2006 ruling imposing evidentiary sanctions upon CSC. The Referee accepted CSC’s promise, granted CSC’s request and recommended to the trial court that it adopt his ruling. The trial court never formally adopted that ruling because subsequently it granted Staff Pro’s motion to dismiss. But the trial court’s failure to adopt the ruling did not prevent either the Referee or the trial court from later considering Staff Pro’s Motion No. 25 to compel CSC to honor the reimbursement provision.
Further, CSC has failed to establish that the trial court’s adoption of the Referee’s recommended ruling was an abuse of discretion. CSC’s promise induced the Referee to grant its request and gave CSC something it would not otherwise have had: modification of evidentiary sanctions for purpose of trial. Staff Pro then relied upon CSC’s promise (a promise which was an express condition of the order modifying the ruling imposing evidentiary sanctions) by conducting a three-day deposition of CSC’s expert. On these facts, the trial court did not abuse its discretion in adopting the Referee’s ruling on Motion No. 25 to require CSC to reimburse Staff Pro for the reasonable attorney fees and costs incurred in deposing Wax-Semus.
CSC next attacks the trial court’s adoption of the Referee’s ruling on Motion No. 25 by arguing that the Referee “failed to comply with the time requirements set forth in Code of Civil Procedure Section 643(a)” requiring a referee to file his report with the trial court “within 20 days after the hearing, if any, has been concluded and the matter has been submitted.” (§ 643, subd. (a).) CSC gives no dates to support this argument. We assume that CSC refers to the facts that the Referee conducted the hearing on the motion on February 8 but did not file his recommendation until March 12. CSC’s argument is not persuasive. Subdivision (a) of section 643 applies only when the court appoints the referee without the consent of both parties. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 74, p. 501.) Here, however, the parties agreed to Judge Chernow’s appointment as discovery referee so that subdivision (b) of section 643 applies. That statutory provision simply requires the referee to “report [to the trial court] as agreed by the parties and approved by the court.” (§ 643, subd. (b).) CSC has failed to point to any agreed upon time requirement that the Referee failed to meet. In any event, a referee’s failure to file a timely report does not invalidate the report or any ruling entered upon it. (See Keller v. Sutrick (1863) 22 Cal. 471, 473.) Instead, the burden rests on the complaining party (here, CSC) to establish prejudice from a failure to file a timely report. (In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 808-809.) CSC has failed to acknowledge, let alone meet, that burden.
Lastly, CSC argues that “the Referee did not follow the [sic] of his own pronouncement, which stated that attorney fees could and would be awarded only if related to the renewed expert witness deposition on the documents in CSC’s Trial Notebooks.” If CSC is urging that the award of attorney fees and costs is unsupported because Staff Pro’s deposition of Wax-Semus exceeded the scope of the Referee’s July 2006 ruling, the claim is forfeited because CSC has failed to identify any portion of the record to support this claim and has failed to develop the claim with citation to applicable legal authority. (Dills v. Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
B. The February 24, 2006 Ruling
CSC next attacks the propriety of evidentiary sanctions imposed by the trial court on February 24, 2006. As explained earlier, this ruling limited the scope of the trial testimony of CSC’s experts. In a prior appeal, we upheld the issuance of the monetary sanctions ($46,049.28) arising out of that ruling but did not decide whether the evidentiary sanctions were proper. (Contemporary Services Corporation, et al., v. Staff Pro, Inc., et al., supra, (Aug. 30, 2007, B189132).) CSC now explains: “[A]lthough the issues represented by this exclusion were purportedly dealt with by the Discovery Referee’s modification of same in his July 18, 2006 Recommendation, it was never entered by the Court and now, if the appeal of either of the Motions is successful, CSC is left with an Order in place which severely restricts its ability to present its case to the Trial Court.” (Italics added.) Because we affirm the trial court’s summary adjudication of the first cause of action and its dismissal of the second cause of action, this claim is moot and therefore warrants no consideration.
To a certain extent, CSC seems to suggest that the $46,049.28 award of financial sanctions was an abuse of discretion. This claim is barred by the doctrine of law of the case. In Contemporary Services Corporation, et al., v. Staff Pro, Inc., et al., supra, (Aug. 30, 2007, B189132), we rejected all of the arguments CSC is now making and explicitly held the award was not an abuse of discretion. That holding has become law of the case and must be adhered to both in the trial court and any further appeals such as this one. (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.)
C. The June 27, 2005 Ruling
Lastly, CSC attacks evidentiary sanctions found in a June 27, 2005 ruling of the trial court. The ruling imposed financial and evidentiary sanctions on CSC based upon its abusive discovery practices and violations of the Referee’s prior discovery rulings. In Contemporary Services Corporation, et. al., v. Staff Pro, Inc., et al., (March 21, 2006, B185119), we meticulously reviewed the record, held that the trial court had not abused its discretion in finding that CSC had violated the Referee’s orders and had misused the discovery process, and therefore affirmed the imposition of financial sanctions. We declined to reach the challenge to the evidentiary sanctions because that claim was not cognizable on the appeal taken from an award of monetary sanctions. (§ 904.1, subd. (12).)
The evidentiary sanctions precluded CSC from showing to non-party witnesses (1) declarations from seven former Staff Pro employees alleging ghost billing by Staff Pro and (2) any documents or testimony addressing Staff Pro’s profits, profit margins or costs of doing business. CSC now claims that these evidentiary sanctions “had an enormous impact on CSC’s ability to pursue its case” and, in particular, “impacted” its “ability... to respond to Staff Pro’s motions for summary judgment and dismissal.”
It is CSC’s burden to establish that the specific evidentiary sanctions constituted an abuse of discretion, and, that absent those sanctions, it is reasonably probable that CSC would have defeated either or both of Staff Pro’s motions and thus have avoided dismissal of its case. “Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred.” (Walker v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) But CSC fails to articulate any specific argument about how the sanctions prejudiced its ability to respond to Staff Pro’s two dispositive motions. “One cannot simply say the court erred, and leave it up to the appellate court to figure out why.” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) “This court is not inclined to act as counsel for [CSC] and furnish a legal argument as to how the trial court’s rulings in this regard constituted [a prejudicial] abuse of discretion.” (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.) CSC’s deficient presentation results in a forfeiture of its claim. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
DISPOSITION
The judgment is affirmed. Respondents (Staff Pro and Meredith) are to recover their costs on appeal.
We concur: MANELLA, J.SUZUKAWA, J.
CSC does not direct us to where in this voluminous record (a 5012-page Appellant’s Appendix and a 354-page Respondent’s Appendix) this evidence can be found. It is not our obligation to search the record for them. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Further, CSC does not identify Staff Pro’s objections sustained by the trial court and does not offer any legal argument why the trial court abused its discretion in sustaining the objections. This deficient presentation constitutes a forfeiture of CSC’s right to claim on appeal that the trial court’s ruling was error, let alone prejudicial error. “An issue merely raised by a party without any argument or authority is deemed to be without foundation and requires no discussion.” (Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9.)
CSC raised the following objections to each of the two paragraphs: “[L]acks foundation, calls for speculation, is an improper opinion, and the documents speak for themselves.”
At another point, Staff Pro’s counsel stated: “Also with respect to the purpose issue, we have submitted evidence in addition to Meredith’s declaration, objective evidence from other officers stating how [pricing is] done at Staff Pro.”
Staff Pro objected to the trial court’s consideration of the document, arguing that there was “no foundation for CSC’s contention that Exhibit P represents Staff Pro’s fully allocated costs of services.” To support its objection, Staff Pro proffered a declaration from Meredith explaining that the document was not a statement of actual costs, but, instead, was a guide, based upon various assumptions of costs (labor and overhead) to give Staff Pro’s sales force the flexibility to bid and negotiate. The trial court sustained Staff Pro’s objection.
In this appeal, CSC suggests the evidentiary ruling was error. It argues that a “foundation” for the document was established because Meredith’s declaration “authenticate[d] that document as one of [Staff Pro’s] business records.” This argument misses the mark. Staff Pro’s objection was not that CSC had failed to establish it was a Staff Pro document; Staff Pro’s objection was that the document did not represent what CSC claimed it to represent: Staff Pro’s actual costs of services. CSC offers no real argument or authority to support its passing suggestion that the trial court abused its discretion in sustaining Staff Pro’s objection to the document. Any claim of error is therefore forfeited. (Golden Day Schools, Inc. v. Department of Education, supra, 69 Cal.App.4th at p. 695, fn. 9.) Consequently, we cannot and do not consider Exhibit P in deciding whether CSC established a triable issue of material fact, either directly through its submission or indirectly through Zuckerman’s reliance on it in giving his opinion that Staff Pro submitted below-cost bids.
In Clayworth, a group of retail pharmacies sued several drug manufacturers. They alleged a price-fixing conspiracy and pled claims under the federal Cartwright Act and California’s UCL. In regard to the issue of standing to pursue a claim under the UCL, Clayworth found that the pharmacies had suffered an “injury in fact and [had] lost money or property” within the meaning of section 17204 because they had “paid more [for the manufacturers’ drugs] than they otherwise would have because of a price-fixing conspiracy in violation of state law. The voters’ intent that under Proposition 64 suits be limited to those who suffer injury in fact is satisfied here.” (2010 Daily Journal DAR p. 10777.) Nothing in that holding supports CSC’s claim that it established standing in this case. In contrast to the pharmacies’ showing of a specific and concrete injury flowing directly from the act of unfair competition, CSC advanced only an attenuated and speculative claim of injury. As explained above in detail, the trial court correctly found that CSC had failed to establish an “injury in fact.”
In addition, Clayworth held that the “right to seek injunctive relief under section 17203 is not dependent on the right to seek restitution; the two are wholly independent remedies.” (2010 Daily Journal DAR p. 10777.) This portion of Clayworth has no relevance to this decision because we have not rested our finding of a lack of standing on CSC’s inability to obtain restitution.