1

Filed 1/26/21 Klug v. Green CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RAYMOND A. KLUG et al.,

Plaintiffs and Appellants,

v.

EDWARD GREEN III et al., 

Defendants and Respondents.

B296904

Los Angeles County

Super. Ct. No. NC060795

APPEALS from judgments of the Superior Court of Los

Angeles County, Mark C. Kim, Judge. Reversed and remanded 

with directions.

Tredway, Lumsdaine & Doyle, Roy J. Jimenez and 

Brandon L. Fieldsted for Plaintiffs and Appellants.

Diem Law and Robin L. Diem for Defendant and 

Respondent Edward Green III.

Andrade Gonzalez, Sean A. Andrade and Henry H. 

Gonzalez for Defendant and Respondent Derek T. Dee.

_______________________________________
2

INTRODUCTION

This case arises from a dispute among partners in a 

medical practice partnership. The partners are corporations 

wholly owned by individual physicians in the medical practice. 

After a disagreement arose concerning several accounting 

matters, one corporate partner and the physician-owner of that

corporation (plaintiffs) sued the partnership, the other corporate 

partners, and their physician-owners. In addition to stating four 

substantive causes of action (e.g., breach of the partnership 

agreement, breach of fiduciary duty), the complaint alleged each 

corporate partner was the alter ego of its physician-owner.

Two defendant physicians brought motions for summary 

judgment and, in the alternative, summary adjudication as to the 

four causes of action stated in the complaint. They did not 

address the issue of alter ego liability, however. The court found 

in favor of the physicians on the four causes of action, granted

their motions for summary judgment, and entered judgments of 

dismissal. Plaintiffs appeal. 

Plaintiffs contend the court erred by entering judgments in 

the physicians’ favor because the alter ego issue remains to be 

litigated. The physicians claim plaintiffs failed to allege alter ego 

sufficiently, therefore relieving them of the obligation to litigate 

the issue on summary judgment. We conclude plaintiffs’ 

allegations were sufficient and that the court erred in granting 

summary judgment. Accordingly, we reverse the judgments and 

remand for further proceedings.
3

FACTS AND PROCEDURAL BACKGROUND

1. The Parties 

The plaintiffs and appellants are Raymond A. Klug, M.D., 

Inc., and Raymond A. Klug (plaintiffs). Klug practiced in, and his 

eponymous corporation was a member of, the Greater Long 

Beach Orthopaedic Surgical and Medical Group (the 

partnership). The partnership was dissolved in late 2016. 

The defendants in this case include the partnership, the 

other corporate members of the partnership, and the physicians 

who own those corporations. As pertinent here, the corporate 

partner defendants include Derek T. Dee M.D., a Professional 

Corporation (Dee Corporation) and Edward Green III, a Medical 

Corporation (Green Corporation). The owners of those 

corporations, physicians Derek T. Dee and Edward Green III, are 

also named defendants (physician defendants) and are the 

respondents in this appeal.

2. The Partnership

The partnership was governed by an amended partnership 

agreement dated October 1, 1980. As pertinent here, Section IX of 

the partnership agreement provides in pertinent part: 

“Temporary total disability occurs when a Fully Active Partner is 

suffering from a physical or mental incapacity as certified by a 

medical physician which prevents him from pursuing and 

devoting any of his time to the practice of medicine on behalf of 

the medical partnership. In the event any Fully Active Partner is 

absent from active practice because of an induction into the 

military service, or should become temporarily disabled due to 

illness or injury, as certified by a medical physician, the following 

terms and conditions shall apply: [¶] A. The partner shall 
4

continue to receive 80% of the average 12-month’s income that he 

is entitled to receive under Paragraph VII above for a period of 

ninety (90) days. In the ensuing one hundred eighty (180) days, 

he shall receive one half (1/2) of said average net income that he 

is entitled to receive under said Paragraph VIII. Thereafter, he 

shall not be entitled to receive any income until such time as he 

is again working full time in the partnership medical practice.”

In May 2016, Klug informed the partnership that he had 

been diagnosed with lymphoma and was temporarily totally 

disabled within the meaning of the partnership agreement.

3. The Primary Dispute

The partnership made several payments to plaintiffs 

between June and August of 2016. The parties did not agree, 

however, on whether the payments were properly characterized 

as disability payments or partnership distributions. Plaintiffs 

also objected to the redistribution of overhead expenses in a 

manner benefitting certain partners, the manner in which 

partnership meetings were held, and the withholding of 

partnership financial information.

4. The Complaint

On September 2, 2016, plaintiffs filed the present suit 

against the partnership, the other corporate partners, and the 

other individual physicians who owned the corporate partners. A 

few weeks later, a majority of the corporate partners voted to 

dissolve the partnership effective September 30, 2016.

The complaint sets forth four causes of action: breach of 

contract (i.e., the partnership agreement), breach of fiduciary 

duty, dissolution of the partnership, and accounting. Plaintiffs 

allege the defendants breached the partnership agreement as 
5

well as their fiduciary duties to plaintiffs by failing to pay them 

the full amount of disability payments required under the 

partnership agreement, reallocating the partnership overhead in 

a manner detrimental to plaintiffs, and refusing to disclose 

partnership financial information upon request. Plaintiffs also 

sought to dissolve the partnership and requested an accounting of 

the partnership’s finances.

In addition, and as pertinent here, the complaint includes

the following general allegation: 

“At all times mentioned, Defendant corporations were 

wholly owned and controlled by the individual doctors for which 

they are named. At all times mentioned, there was and is a unity 

of interest and ownership which existed between the Doctors and 

their individual corporations, such that the separateness of the 

individual and the corporations never existed. Adherence to such 

fiction will result in fraud and inequity upon those persons that 

seek relief from the corporations. By reason thereof, the corporate 

veil of the individual medical corporations should be set aside so 

that the partner doctors may be held personally responsible and 

accountable for all acts and transactions of [the Partnership.]”

Dee and Dee Corporation answered the complaint, as did 

Green and Green Corporation.
6

5. Summary Judgment Proceedings1

5.1. Green’s Motion

Green and Green Corporation (Green defendants) jointly 

filed a motion for summary judgment or, in the alternative, 

summary adjudication addressing plaintiffs’ four causes of action. 

As pertinent here, the Green defendants contended that plaintiffs 

received all the disability payments owed under the partnership 

agreement. Accordingly, no breach of the partnership agreement 

or breach of fiduciary duty occurred in that regard. As to the 

reallocation of overhead expenses, the Green defendants noted 

that the complaint alleged Dee acted alone in that respect and 

plaintiffs confirmed that position in their discovery responses. 

Similarly, and with respect to the failure to provide requested 

financial information to plaintiffs, the Green defendants observed

that plaintiffs had not alleged, nor had they indicated in their 

discovery responses, that they had requested any financial 

information from the Green defendants or that the Green 

defendants kept and maintained the partnership’s financial 

records. Finally, the Green defendants asserted that the 

plaintiffs’ causes of action for dissolution and accounting were 

moot because the partnership had been dissolved, had provided 

an accounting, and had made its final partnership distributions.

1 The issue presented in this appeal does not require us to address the 

correctness of the trial court’s adjudication of the complaint’s four 

causes of action. In the interest of brevity, we discuss the substantive 

claims only insofar as is necessary to provide context for our analysis of 

the alter ego issue.
7

Plaintiffs opposed the motion. Mainly, plaintiffs focused on 

the interpretation of the partnership agreement and the proper 

characterization of payments made by the partnership to 

plaintiffs after Klug became temporarily disabled.

The parties appeared before the court and argued the case. 

After taking the matter under submission, the court issued its 

ruling. Although the Green defendants had not advanced distinct 

arguments as between themselves, the trial court addressed the 

potential liability of Green and Green Corporation separately. 

The court found that Green was not a partner in his individual 

capacity and, therefore, could not be liable for breach of either the 

partnership agreement or any fiduciary duty attendant to the 

partnership. The court further found that the dissolution claim 

was moot because the partnership had already been dissolved.

The court also concluded that Green, individually, did not owe 

plaintiffs any accounting on behalf of the partnership.

2 After 

addressing each of the plaintiffs’ four causes of action, the court 

granted Green’s motion for summary judgment.

After the Green defendants gave notice of the court’s 

ruling, plaintiffs objected to the entry of a judgment of dismissal

in favor of Green. Plaintiffs noted that the operative complaint 

alleged alter ego liability, but Green had not addressed the issue 

2 The court found triable issues of material fact existed regarding 

Green Corporation’s liability on the causes of action for breach of 

contract and breach of fiduciary duty. But the court granted Green 

Corporation’s motion for summary adjudication on the two remaining 

causes of action. The court found the dissolution claim to be moot, as 

noted. And with respect to the accounting claim, the court concluded 

that the partnership might owe plaintiffs an accounting, but Green 

Corporation did not.
8

in his motion. Expressing concern that a judgment of dismissal 

could bar them from litigating the alter ego issue in the future, 

plaintiffs asked the court to refrain from entering judgment in 

favor of Green. The record does not reveal whether or how the 

court addressed plaintiffs’ objection.

5.2. Dee’s Motion

Dee and Dee Corporation (Dee defendants) jointly filed a 

motion for summary judgment or, in the alternative, summary 

adjudication addressing plaintiffs’ four causes of action as well as 

plaintiffs’ claim for punitive damages. As pertinent here, the Dee

defendants contended that plaintiffs received all the disability 

payments owed under the partnership agreement. Accordingly, 

no breach of the partnership agreement or breach of fiduciary 

duty occurred in that regard. As to the reallocation of overhead 

expenses, the Dee defendants asserted the decision was made in 

accordance with the partnership agreement by a vote of the 

partners. With respect to the failure to provide financial 

information to plaintiffs, the Dee defendants observed that 

plaintiffs had not requested any financial information from them.

The Dee defendants also asserted that plaintiffs’ causes of action 

for dissolution and accounting were moot because the partnership 

had been dissolved, had provided an accounting, and had made 

its final partnership distributions. Finally, the Dee defendants 

argued that the allegations set forth in the complaint did not 

support plaintiffs’ claim for punitive damages.

Plaintiffs opposed the motion. Again, plaintiffs focused 

substantially on the interpretation of the partnership agreement 

and the proper characterization of payments made by the 

partnership to plaintiffs after Klug became temporarily disabled. 

Plaintiffs also claimed triable issues of material fact existed 
9

regarding the partnership decision-making process, the 

reallocation of overhead expenses, punitive damages, and the 

causes of action for dissolution and accounting.

Finally, plaintiffs argued that triable issues of material fact 

existed regarding their alter ego theory—a basis for liability the 

Dee defendants did not address in their motion. Plaintiffs

asserted that “[Dee] failed to observe necessary corporate 

formalities[,]” “the corporation was just a shell[,]” and that Dee

“was the sole employee of the corporation, its sole shareholder, 

[its] only director, and all funds held in the corporation were 

presumably transferred to him directly.” Plaintiffs asserted in 

their separate statement the following additional fact: “Plaintiff 

has substantial evidence showing that alter-ego liability will 

apply in this case, as [Dee Corporation] was underfunded, had no 

other shareholders, no other employees and only paid ... Dee the 

individual. As such, the actions taken by [Dee] Corporation were 

in fact taken by [Dee] the individual, and any judgment against 

the [Dee] Corporation should be attributed to the individual.”

Plaintiffs included a citation to the following portion of Dee’s 

deposition: 

“Q: When you were employed by [the partnership], did you 

operate under any – any other corporation or were you acting 

individually? 

“A: I had a corporation.

“Q: And what was the name of that corporation?

“A: Derek T. Dee, MD, A Professional Corporation.

“Q: So you had the same name?

“A: No.

“Q: What’s the difference in the name? I didn’t catch that.

“A: The middle initial is T versus Tan.
10

“Q: I see. And when was that corporation established? 

“A: Sometime around 2001.

“Q: Shortly after joining [the partnership]?

“A: It was – I believe it was established before that.

“Q: What was the reason for starting the new corporation, the 

Derek Tan Dee, Medical – or Professional Corporation? 

“A: I was starting a new practice.

“Q: Going to the Derek T. Dee, MD, A Professional Corporation, 

did it have any employees other than yourself?

“A: No.

“Q: And the Derek T. Dee corporation was – was the partner in 

[the partnership]? 

“A: Correct.

“Q: At the time that you were with [the partnership], did you 

work for any other entities besides the Derek T. Dee, A 

Professional Corporation?

“A: No.

...

“Q: Did the Derek T. Dee, MD, A Professional Corporation do any 

work outside of the ... partnership from 2001 until 2016?

...

“A: No, it did not.

“Q: During the period of 2001 to 2016 did – did your corporation 

have regular shareholder meetings? 

“A: Yes, it did.

“Q: How often did it meet, the shareholders? 

“A: Annually.

“Q: And who were the shareholders of the corporation from 2001 

to 2016? 

“A: Myself.
11

“Q: And did it have a board of directors?

“A: I’m not certain.

“Q: Did your wife have any ownership in the Derek T. Dee 

corporation? 

“A: No.

“Q: What was the purpose of setting up the Derek T. Dee 

corporation?

...

“A: That was what was advised to me. 

“Q: Who advised you to set it up? 

“A: I don’t recall.”

In reply, the Dee defendants argued that Dee was not a 

partner in the partnership and therefore could not be personally

liable for any breach of contract or breach of fiduciary duty. 

Further, they contended, plaintiffs’ attempt to hold Dee liable 

under the alter ego theory failed because they did not produce 

sufficient evidence to create a triable issue of fact. 

The parties appeared before the court and argued the case. 

After taking the matter under submission, the court issued its 

ruling. Consistent with its ruling on the Green defendants’ 

motion, the court found that Dee was not a partner in his 

individual capacity and, therefore, could not be liable for breach 

of either the partnership agreement or any fiduciary duty 

attendant to the partnership. The court also rejected plaintiffs’ 

alter ego claim, finding the deposition excerpts submitted to the 

court were insufficient to create a triable issue of material fact on 

that question. As before, the court found that the dissolution 

claim was moot because the partnership had already been 

dissolved. The court also concluded that Dee, individually, did not 
12

owe plaintiffs any accounting on behalf of the partnership. The 

court then granted Dee’s motion for summary judgment.3

6. Judgments of Dismissal and the Appeals

The court entered a judgment of dismissal in favor of Green 

on February 11, 2019. Plaintiffs timely appealed.

The court also entered a judgment of dismissal in favor of 

Dee on July 1, 2019. Plaintiffs timely appealed. 

At the parties’ request, we consolidated the appeals for all 

purposes.

DISCUSSION

Because plaintiffs do not challenge the court’s summary 

adjudication of the complaint’s four substantive causes of action, 

we consider only whether the court erred by granting summary 

judgment and entering judgments of dismissal in favor of the 

physician defendants. Plaintiffs contend they adequately pleaded 

an alter ego theory of liability against the physician defendants 

and, because that issue was unaddressed in the motions for 

summary judgment, the court erred in dismissing the physician 

defendants from the case. The physician defendants argue the 

3 The court found triable issues of material fact existed regarding Dee

Corporation’s liability on the causes of action for breach of contract and 

breach of fiduciary duty. But the court granted Dee Corporation’s 

motion for summary adjudication on the two remaining causes of 

action. The court found the dissolution claim to be moot, as noted. And 

with respect to the accounting claim, the court concluded that the 

partnership might owe plaintiffs an accounting, but Dee Corporation 

did not. Finally, the court found no triable issue of material fact 

existed regarding punitive damages.
13

theory was not adequately pleaded and, in any event, no evidence 

supports liability under an alter ego theory. 

1. Scope and Standard of Review

The applicable standard of review of a ruling on a motion 

for summary judgment is well established. “The purpose of the 

law of summary judgment is to provide courts with a mechanism 

to cut through the parties’ pleadings in order to determine 

whether, despite their allegations, trial is in fact necessary to 

resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 843 (Aguilar).) 

The moving party “bears the burden of persuasion that 

there is no triable issue of material fact and that he is entitled to 

judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at 

p. 850; Code Civ. Proc., § 437c, subd. (c).) A defendant moving for 

summary judgment must “ ‘show[ ] that one or more elements of 

the cause of action ... cannot be established’ by the plaintiff. 

[Citation.]” (Aguilar, at p. 853.) A defendant meets its burden by 

presenting affirmative evidence that negates an essential 

element of a plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000) 

24 Cal.4th 317, 334 (Guz).) Alternatively, a defendant meets its 

burden by submitting evidence “that the plaintiff does not 

possess, and cannot reasonably obtain, needed evidence” 

supporting an essential element of its claim. (Aguilar, at p. 855.)

On appeal from a summary judgment, we review the record 

de novo and independently determine whether triable issues of 

material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 

Cal.4th 763, 767; Guz, supra, 24 Cal.4th at p. 334.) We resolve 

any evidentiary doubts or ambiguities in favor of the party 

opposing summary judgment. (Saelzler, at p. 768.)
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In performing an independent review of the granting of 

summary judgment, we conduct the same procedure employed by 

the trial court. We examine (1) the pleadings to determine the 

elements of the claim, (2) the motion to determine if it establishes 

facts justifying judgment in the moving party’s favor, and (3) the 

opposition—assuming movant has met its initial burden—to 

decide whether the opposing party has demonstrated the 

existence of a triable, material fact issue. (Oakland Raiders v. 

National Football League (2005) 131 Cal.App.4th 621, 629–630.) 

We need not defer to the trial court and are not bound by the 

reasons in its summary judgment ruling; we review the ruling of 

the trial court, not its rationale. (Id. at p. 630.)

2. The court erred by granting the physician defendants’ 

motions for summary judgment.

2.1. The complaint adequately pleads the alter ego 

theory of liability.

The pleadings play a key role in a summary judgment 

motion. Our Supreme Court has explained: “The materiality of a 

disputed fact is measured by the pleadings [citations], which ‘set 

the boundaries of the issues to be resolved at summary 

judgment.’ [Citations.]” (Conroy v. Regents of University of 

California (2009) 45 Cal.4th 1244, 1250; Hutton v. Fidelity 

National Title Co. (2013) 213 Cal.App.4th 486, 493.) Accordingly, 

the burden of a defendant moving for summary judgment only 

requires that he or she negate the plaintiff’s theories of liability 

as alleged in the complaint; that is, a moving party need not 

refute liability on some theoretical possibility not included in the 

pleadings. (Conroy, at pp. 1254–1255; see Melican v. Regents of 

University of California (2007) 151 Cal.App.4th 168, 182 [“We do 
15

not require [a defendant] to negate elements of causes of action 

plaintiffs never pleaded”].)

The physician defendants contend plaintiffs failed to plead 

the alter ego theory adequately in their complaint and, therefore, 

they had no obligation to address the theory in their motions for 

summary judgment. Plaintiffs did not set forth their alter ego 

theory as an independent cause of action. But although that type 

of pleading is allowed, it is not required. Several procedural 

vehicles are available to a party asserting alter ego liability. 

“ ‘The first option is to sue the alter ego directly in an action for 

breach of contract ... . Another is to first obtain a judgment for 

breach of contract against the signatories to the contract, 

followed by a motion to amend the judgment to add the alter egos

as defendants. [Citations.] Still another is, after obtaining a 

judgment against the signatories, to institute an independent 

action against the alter egos ... . These different procedural 

vehicles, however, are identical in substance: in all three, the 

proof of alter ego is the same.’ [Citation.]” (347 Group, Inc. v. 

Philip Hawkins Architect, Inc. (2020) 58 Cal.App.5th 209, 214.) 

In any event, plaintiffs’ complaint does include an 

allegation relating to alter ego liability. The alter ego theory has 

two basic elements. “[T]o prevail in a cause of action against 

individual defendants based upon disregard of the corporate 

form, the plaintiff must plead and prove such a unity of interest 

and ownership that the separate personalities of the corporation 

and the individuals do not exist, and that an inequity will result 

if the corporate entity is treated as the sole actor.” (Vasey v. 

California Dance Co. (1977) 70 Cal.App.3d 742, 749 (Vasey); 

Leek v. Cooper (2011) 194 Cal.App.4th 399, 415 (Leek).) 
16

Plaintiffs’ complaint alleges both required elements. As 

noted ante, plaintiffs alleged with respect to the first element 

that the “[d]efendant corporations were wholly owned and 

controlled” by the physician defendants and that “there was and 

is a unity of interest and ownership which existed between the 

Doctors and their individual corporations, such that the 

separateness of the individual and the corporations never 

existed.” As to the second element, plaintiffs allege that denying 

the unity of interest between the physicians and their 

corporations “will result in fraud and inequity” for plaintiffs. And 

although plaintiffs did not use the words “alter ego,” they were 

not required to do so. (See Leek, supra, 194 Cal.App.4th at p. 415 

[“To recover on an alter ego theory, a plaintiff need not use the 

words ‘alter ego,’ but must allege sufficient facts to show a unity 

of interest and ownership, and an unjust result if the corporation 

is treated as the sole actor”].) Plaintiffs did, however, reference 

piercing the corporate veil, stating “the corporate veil of the 

individual medical corporations should be set aside so that the 

partner doctors may be held personally responsible and 

accountable for all acts and transactions of [the partnership].”

Citing Vasey, the physician defendants contend these 

allegations are inadequate. In Vasey, individual and corporate 

defendants defaulted in an unlawful detainer action. The court 

entered default judgments against all defendants, but the 

liability of the individual defendants was predicated solely on an 

alter ego theory. On appeal, the individual defendants asserted 

that the complaint did not properly plead the alter ego theory and 

the Court of Appeal agreed. (Vasey, supra, 70 Cal.App.3d at 

pp. 748–749.)
17

The physician defendants argue that plaintiffs’ alter ego 

allegations mirror the allegations found to be inadequate in 

Vasey. They are wrong. The problem with the complaint in Vasey

was that the allegations only addressed one of the two elements 

required to establish alter ego liability. (Vasey, supra, 70 

Cal.App.3d at p. 749.) Specifically, “the complaint alleged that 

any individuality and separateness of the corporation had ceased 

and that CDC was the alter ego of the individual defendants.” 

(Id. at p. 745.) The complaint made no mention of the second 

element—inequity resulting from the recognition of the corporate 

form. (Id. at p. 749.) As we have said, plaintiffs’ allegations 

address both required elements. 

In addition, the physician defendants contend that

plaintiffs’ allegations are bare conclusory allegations rather than 

facts. To support their position, the physician defendants quote 

extensively from First Western Bank & Trust Co. v. Bookasta

(1968) 267 Cal.App.2d 910, in which the plaintiff’s allegations 

were indeed more comprehensive that those at issue here. But 

the holding there—that the allegations of that complaint were 

sufficient to withstand a demurrer—does not assist the physician 

defendants here. Bookasta did not claim to set a minimum 

standard for pleading alter ego liability nor has it been construed 

in that manner by other courts. 

Plaintiffs’ allegations, while not particularly detailed, set 

forth both required elements for alter ego liability. A plaintiff is 

not required to set forth every fact that may ultimately be 

proved. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 

223 Cal.App.4th 221, 236 [plaintiff asserting alter ego theory 

required to allege only “ ‘ultimate rather than evidentiary 

facts’ ”].) The issue is whether “the allegations were adequate to 
18

apprise [a defendant] that he was being held accountable as an 

alter ego.” (Leek, supra, 194 Cal.App.4th at p. 412.) Pleadings 

must be construed liberally and with a view to substantial 

justice. (Code Civ. Proc., § 452.) And, as here, “ ‘less particularity 

[of pleading] is required where the defendant may be assumed to 

possess knowledge of the facts at least equal, if not superior, to 

that possessed by the plaintiff ... .’ ” (Rutherford Holdings, at 

p. 236.) 

In sum, we conclude plaintiffs’ complaint sufficiently 

apprised the physician defendants that alter ego liability was at 

issue.

2.2. Because the physician defendants did not 

address the alter ego theory in their motions, 

summary judgment was inappropriate. 

At this point, we would typically examine the defendant’s 

motion and supporting evidence to determine whether the 

defendant made a prima facie showing of the nonexistence of a 

triable issue of material fact, thereby shifting the burden to the 

plaintiff to make a prima facie showing that a triable issue of 

material fact exists. (See generally Aguilar, supra, 25 Cal.4th at 

p. 850; Code Civ. Proc., § 437c, subd. (p)(2).) Here, however, 

neither physician defendant addressed the alter ego theory of 

liability in his motion for summary judgment and/or 

adjudication.4

4 Dee asserts that in ruling on the summary judgment motion, the trial 

court “found that Dr. Dee presented evidence in his moving papers that 

raised the alter ego issue.” Having read both the trial court’s ruling 

and Dee’s moving papers, we conclude the court erred. In any event, 
19

It is well-established that “[w]here the evidence presented 

by defendant does not meet its burden, ‘the [summary judgment] 

motion must be denied without looking at the opposing evidence, 

if any, submitted by plaintiff.’ [Citation.] Accordingly, a plaintiff 

has no evidentiary burden on summary judgment unless and 

until the moving defendant first meets its initial burden. 

[Citation.]” (Dix v. Live Nation Entertainment, Inc. (2020) 56 

Cal.App.5th 590, 604–605.) Plaintiffs thus assert that the 

physician defendants’ failure to address alter ego liability 

precludes summary judgment in their favor. We agree.

The physician defendants, however, offer several 

arguments in support of the court’s summary judgment ruling. 

We address them briefly. 

First, the physician defendants note that a court has the 

inherent power to grant summary judgment on a ground not 

explicitly tendered by the moving party, so long as the opposing 

party has notice and the opportunity to respond. And they submit 

that plaintiffs had both notice and an opportunity to address the 

alter ego issue here. The principle advanced in the cases cited by 

the physician defendants is inapplicable here, however. In Juge v. 

County of Sacramento (1993) 12 Cal.App.4th 59 (Juge), for 

example, the defendant moved for summary judgment on a 

negligence claim. The defendant did not explicitly argue the 

absence of causation, but the undisputed evidence established 

that the defendant’s alleged negligent act did not cause the 

plaintiff’s injury. The court of appeal held that that the trial court 

we are not bound by that finding in light of the applicable standard of 

review.
20

properly granted summary judgment due to the absence of 

causation, explaining that the court has the inherent power to 

grant summary judgment on a ground not explicitly tendered by 

the moving party “when the parties’ separate statements of 

material facts and the evidence in support thereof demonstrate 

the absence of a triable issue of material fact put in issue by the 

pleadings and negate the opponent’s claim as a matter of law.” 

(Id. at p. 70.) 

Juge and the other similar cases cited by the physician 

defendants are inapposite. They address situations in which a 

defendant moving for summary judgment has attacked a cause of 

action but may not have identified the precise legal argument 

later adopted by the court or may not have produced sufficient 

evidence to establish lack of merit. (See Juge, supra, 12 

Cal.App.4th at pp. 71–72 [defendant moved for summary 

judgment on negligence claim but did not specifically assert 

absence of causation]; see also Bacon v. Southern Cal. Edison Co.

(1997) 53 Cal.App.4th 854, 857–858 [defendant moved for 

summary judgment asserting immunity from liability without 

addressing statutory exceptions]; Villa v. McFerren (1995) 35 

Cal.App.4th 733, 750–751 [defendant moving for summary 

judgment on civil conspiracy claim failed to put forth sufficient 

evidence to establish lack of merit but plaintiff’s opposition 

evidence could be considered]; Laabs v. City of Victorville (2008) 

163 Cal.App.4th 1242, 1268, fn. 14 [same, citing Villa v. 

McFerren].) These cases, however, do not address—or apply to—

the situation presented here, i.e., where a court purportedly 

resolves a claim set forth in the plaintiff’s complaint, but which 

was not addressed by the defendant’s motion for summary 

judgment. 
21

Second, Dee claims that plaintiffs submitted the alter ego 

issue for decision by the court by addressing it in their opposition 

to his motion for summary judgment.5 Dee again cites Villa v. 

McFerren, supra, which, as noted, considered whether evidence 

submitted in support of a plaintiff’s opposition to a motion for 

summary judgment could cure a defendant’s failure to meet its 

initial burden to establish the absence of any triable issue of 

material fact. The other case cited by Dee, Lowe v. California 

League of Prof. Baseball (1997) 56 Cal.App.4th 112, addresses the 

same issue, i.e., the quantum of proof offered by the defendant 

and the correctness of using evidence proffered by the plaintiff to 

cure any defect. 

But the issue here is not that the physician defendants 

attempted but failed to show that plaintiffs’ alter ego claim 

lacked merit in their motions for summary judgment. As we have 

said, the problem is that the physician defendants entirely failed 

to address the issue. As a result, plaintiffs were not required to 

address the issue either.

5 As noted, plaintiffs did not address the alter ego issue in their 

opposition to Green’s motion for summary judgment. 
22

DISPOSITION

The judgments are reversed. The matter is remanded with 

instructions to the trial court to vacate its orders granting the 

motions for summary judgment by Derek T. Dee and Edward 

Green III and enter new orders denying their motions for 

summary judgment. Plaintiffs Raymond A. Klug and Raymond A. 

Klug, M.D., a Medical Corporation shall recover their costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

DHANIDINA, J.