Filed 1/13/14 Armour v. IP Unity CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MAYA ARMOUR, Plaintiff and Appellant,

v.
IP UNITY et al. , Defendant s and Respondent s

. H036937 (Santa Clara County Super. Ct. No. CV123547)

Plaintiff Maya Armour sued de fe ndant IP Unity and its successor in interest Movius Interactive Corporation (formerly IP Unity Glenayre) , alleging that IP Unity
breached its employment agreement with her and violated Labor Code section 201 by failing to pay her severance benefits . Armour also alleged that Movius breached its obligations and violated Labor Code section 201 by failing to pay her additional
severance benefits under its reduction in force (RIF) severance polic y

. The trial court granted summary adjudication in favor of defendant s on Armour’s first three causes of
action . The court dismissed the f ourth cause of action without prejudice at her request

. Judgment was entered on March 9, 2011. On appeal, Armour contends that (1) whether she satisfied the release condition in her employment agreement presented a triable issue of fact that preclud ed summary adjudication of her first cause of action , and (2) statements about the r eason for her2

termination presented a triable issue of fact that preclud ed summary adjudication of her
third cause of action

. We affirm

.

I. Background Armour signed a written employment agreement before she joined IP Unity , a provider of “carrier

- grade communications solutions for the global market , ” as senior legal counsel in January 2004

. She was soon promoted to senior vice president and general counsel of IP Unity and became the corporate secretary. She was “responsible for all legal matters of the company.”
Armour’s employment agreement was amended in November 2006. Drafted by
Armour herself, the amended agreement provided that “[i]n the event that your employment is terminated without Cause (as hereinafter defined) or by you for Good
Reason (as hereinafter defined) following a Change in Control (as hereinafter defined) , then subject to you signing a release of all claims against the Company you shall receive a lump sum payment

. . . in the amount equal to [six] (6) months of base salary

. . . , as well as the payment by the Co mpany for six (6) months following such termination of all your medical and dental benefits, at the same levels of coverage provided immediately prior to such termination.” (Italics added.) In late 2006, I P Unity decided to acquire the assets of Glenayr e Messaging, the messaging division of Glenayre Electronics, Inc. I t created a subsidiary as a vehicle for acquiring those assets

. The subsidiary issued $35 million of Series A and $34.8 million
of Series B preferred stock to fund the deal

. O n December 30, 2006, IP Unity transferred
all of its assets and liabilities to the subsidiary in exchange for all of the subsidiary’s Series A preferred stock and 1,000 shares of its common stock. An investor group purchased the subsidiary’s Series B preferred stock. O n December 31, 2006, t he subsidiary purchased the assets of Glenayre Messaging. As part of the transaction, all former IP Unity employees became IP Unity Glenayre employees. After the asset3

acquisition, IP Unity Glenayre remai ned committed to IP Unity’s then

- current product lines and customers, and its focus remained “providing carrier

- class messaging services and rich media distribution to users across disparate networks and devices.” The new company established its headquar ters in Atlanta, Georgia

. Armour was offered a position there and told that her continued employment with the company was contingent on her relocating to Atlanta. She turned the position down. In deposition, she explained, “ I told them that I wanted to leave the company, that I didn’t want to move to Georgia where the company was going to be headquartered

. . . -- I told the CEO that he should make Tim Cohen, who was the general counsel of the Georgia company, the general counsel of Movius, and that I wo uld do my best to close the transaction and do all the transition matters and transition all my institutional knowledge, and then I would leave.” In deposition, Armour also verified an e

- mail that she sent to one of the company’s investors early in 2007 : “Q: I’d just like you to verify that you sent this e

mail on January 11th saying that you had already given your spot away. ‘I don’t want to move there.’ [¶] A: Yes. [¶] Q: And I assume you’re referring to a role with IP Unity Glenayre in Atlanta. [¶] A: Yes.” Armour said she knew that turning down t he position in Atlanta would likely result in the termination of her employment.
In January 2007, IP Unity Glenayre instituted an “ Involuntary Reduction in Force
Severance Practice ” for “all exempt and non

- exempt, full

- time and part

- time employees” who were involuntarily terminated “due to a reduction in force/downsizing, change in company direction, or job elimination.” The RIF policy expressly did not apply to “terminations for cause, refusal to be reassigned, or refusal to be relocated. ”
On January 19, 2007, Armour and 32 others were formally notified that their employment would be terminated , effective January 31, 2007, as part of a n RIF

. Each was offered a severance package that included IP Unity Glenayre’s standard separation and release agreement. The s eparation a greement and r elease th at Armour received in January 2007 provid ed that she would receive a lump sum payment equal to six months4

of her current base salary and payment of medical and dental benefits for six months if
she sign ed it on or before March 5, 2007. This was the same consideration contemplated by her amended employment agreement. Armour did not sign by the March 5, 2007 deadline, nor did she ask for any extension of time to consider the agreement. On January 22, 2007, after Armour received notice of her termination but before
its effective date, she became critically ill and was hospitalized. She informed IP Unity Glenayre that she would be taking a medical leave of ab sence. The company paid her salary through January 31, 2007 , and , as an accommodation, deferred the effective date of her termination and extended her employment through the end of her disability period. On March 30, 2007, Armour informed the company that she would not be released to work until June 1, 2007. On May 31, 2007, she notified the company that she would be released to work on June 1, 2007 , but did not expect to return to the office until
June 7 , 2007. The company responded that her employment had been terminated effective June 1, 2007, the end of her disability period. The company further informed
her that “[a]lthough you failed to complete and return the paperwork necessary to obtain
the seve rance benefits that the company previously offered to you . . . , due to your disability and the resulting extension of your employment . . . , the company is prepared, purely as an accommodation, to offer to you a new severance package that is financially equivalent to your previously expired one.”
The June 2007 s eparation a greement and r elease that Armour received was signed by IP Unity Glenayre’s vice

- president, general counsel, and secretary on June 8, 2007 , and sent to her with a cover letter of the same date marked “Delivered By Overnight Mail.” The agreement stated that “ [e] mployee has 21 days from receipt of this Agreement to consider and accept this Agreement,” after which “ the Employee’s right to accept shall expire.” The agreement provided mor e generally that “[t]he severance offer contained in this Letter will expire and be of no further force and effect at midnight in Atlanta, Georgia on July 2, 2007, unless an original copy of the entire Agreement signed5

in full by you without modification i s returned . . . .” Armour never signed the June 2007

a greement. On July 12, 2007, 10 days after the agreement’s July 2, 2007 expiration date and
more than a month after Armour had received it , her then

- counsel e

- mailed a demand
letter and a n unsigned proposed form of release to Troy Valdez at Wilson Sonsini
Goodrich & Rosati. In February 2008, IP Unity Glenayre changed its name to Movius Interactive Corporation. On September 25, 2008, Armour filed suit against “IP Unity” and Movius , alleging that IP Unity breached its employment agreement with her and violated Labor Code section 201 by failin g to pay her severance benefits and that Movius breached its obligations and violated Labor Code section 201 by failing to pay her additional
severance benefits under its RIF policy

. In July 2010, defendants moved for summary judgment or, in the alternative, summary adjudication. The trial court granted summary adjudication in favor of defendants on Armour’s first cause of action because the undisputed evidence showed
that she had not satisfied the release condition in her employment agreement. It granted summary adjudication in favor of defendants on Armour’s second cause of action
because it was dependent on the first cause of action. It granted summary adju dication in
favor of Armour’s third cause of action because the undisputed evidence showed that she had refused to relocate to Georgia, and the RIF policy expressly did not apply to “terminations for . . . refusal to be relocated.” Armour’s fourth cause o f action was dismissed without prejudice at her request

. Judgment was entered on March 9, 2011

. Armour filed a timely notice of appeal.6 II. Discussion
A. Claimed Breach of Employment Agreement
Armour contends that whether she satisfied the release condition in her employment agreement presented a triable issue of fact that preclud ed summary adjudication of her first cause of action for breach of contract . We disagree.

“ ‘ “ Appellate review of a ruling on a summary judgment or summary ad judication
motion is de novo. ” ’ ” ( Food Pro Internat., Inc. v. Farmers Ins

. Exchange (2008) 169 Cal.App.4th 976 , 993 .) “[T]he party moving for summary judgment bears the burden of persuasion that there are no triable issues of material fact and that [th e moving party] is entitled to judgment as a matter of law.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (

Aguilar ).) The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triabl e issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” ( Ibid .) “A prima facie showing is one that is sufficient to support the position of the party in question.” ( Id

. at p. 851.) “[A] ‘defendant . . . has met ’ his ‘ burden of showing that a cause of action has no merit if’ he ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material fa cts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials ’ of his

‘ pleadings to show that a triable issue of material fact exists but, instead, ’ must ‘ set forth the specific facts sho wing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ [Citation.] ” ( Aguilar , supra , 25 Cal.4th at p. 849.)
“ ‘ The standard elements of a claim for breach of contract are “ (1) the contract , (2) plaintiff ’ s performance or excuse for nonperformance, (3) defendant ’ s breach , and (4)7

damage to plaintiff therefrom. [Citation.] ” [Citation

. ] ’ [Citation.] ” ( Abdelhamid v. Fire
Ins

. Exchange (2010) 182 Cal.App.4th 990, 999.) Here, d efendants obtained summary adjud ication of Armour’s first cause of action on the ground that she could not prove the
second element

— performance or excuse for nonperformance of the contract

. After independently reviewing the evidence, we conclude that defendants satisfied
their initial burden

. (Code Civ. Proc., § 437c , subd. (p)(1) .) They submitted evidence showing that the employment agreement , drafted by Armour herself, was expressly “subject to [ her ] signing a release of all claims against the Company

. ” They presented additional evidence, including t he declaration of the company’s vice

- president of human
resources and excerpts from Armour’s deposition , showing that Armour was twice presented with the company’s standard s eparation a greement and r elease and did not sign
either by its stated deadline

. This prima facie showing by defendants shifted the burden
to Armour to raise a triable issue of material fact. ( Aguilar , supra , 25 Cal.4th at p. 850.)
Armour submitted a declaration asserting that she did not sign the January 2007 agreement because she became ill. She did not sign the June 2007 a greement “as it was much broader and contained provisions never contemplated by” her amended employment agreement. H er then counsel “sent a letter indicating why the agreement was not satisfactory” and also sen t “a form of a Release of All Claims that was consistent with the Amended Employment Agreement, and that I was prepared to sign.” Copies of her counsel’s letter and of the proposed release , which were e

- mailed to Wilson Sonsini on July 12, 2007, were attached as exhibits to Armour’s declaration. Defendants, she declared, “would not agree to the Release of All Claims agreement suggested by my counsel.”
Th e evidence Armour proffered did not show that a triable issue of material fact
existed. Indeed, she offered no facts, only conclusory assertions that the June 2007

a greement “was much broader and contained provisions never contemplated by” her amended employment agreement. Such conclusory assertions d id not c reate a triable8

issue of material fact. ( Zelasko

- Barrett v. Brayton

- Purcell, LLP (2011) 198 Cal.App.4th 582, 591.) Nor did they excuse Armour from signing any release at all. Her employment agreement un ambiguously stated that the company’s payment of severance was “subject

to you signing a release of all claims against the Company.” (Italics adde d.) “ ‘ Subject to’ is generally construed to impose a condition precedent.” ( Rubin v. Fuchs (1969) 1 Cal.3d 50, 54.) “A condition precedent is o ne which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed.” (Civ. Code, § 1436.) “Before any party to an obligation can require another part y to perform any act under it, he must fulfill all condi tions precedent thereto imposed upon himself . . . .” (Civ. Code, § 1439.)
T he evidence before the trial court showed that Armour never signed d efendants’
standard s eparation a greement and r elease or any other form of release by the stated
deadline

. T he proposed form of release that her counsel tendered instead was both unsigned and too late

. Because the undisputed evidence showed that Armour failed to satisfy the release condition of her employment contract, t he trial court properly granted summary adju dication in favor of defendants on her first cause of action. Relying on Civil Code section 1440, Armour maintains that she “ had no duty to propose a proper release” because “[w]hen defendants demanded she sign their overbroad Severance Agreement without modification, they waived their right to demand any release.” The argument lacks merit

. Civil Code section 1440 provides that where one party to a contract notifies the other, before the other is in default, that he will not perform his part of the contract, the other party may enforce the contract without further performance on his part. (Civ. Code, § 1440.) An anticipatory breach of a contract “giv[es] the [nonbre aching party] a cause of action and avoid [s] the necessity of continuing to tender performance of [its] obligation under the contract.” ( Jeppi v. Brockman Holding Co. (1949) 34 Cal.2d 11,
18 .) “A nticipatory breach must appear only with the clearest terms of repudiation of the9

obligation of the contract. ” ( Hertz Driv

- Ur

- Self Stations, Inc. v. Schenley Distilleries Corp

. (1953) 119 Cal.App.2d 754, 760.) “ [ A ] repudiation must consist of a present, positive unequivocal refusal to perform the contract .” ( Go ld Mining & Water Co

. v. Swinerton (1943) 23 Cal.2d 19, 28 ( Gold Mining )

. )
T he company’s use of a n agreement that Armour belatedly complained was “overbroad” was not a “present, positive unequivocal refusal to perform ” the company’s obligations under her employment agreement . ( Gold Mining , supra , 23 Cal.2d at p. 28 .) Indeed, it was not a repudiation of th e contract at all. As Armour acknowledged at her deposition, the separation agreement offered the same compensation that her employment agreement described

— six months’ base salary and six months of COBRA premiums.
L ike her employment agreement, it conditioned the payment of severance on her signing
a release of all claims against the Company. The agreement she was asked to sign was the company’s standard form separation agreement and release. 1 Armour presented no evidence showing that the term “release,” which was not defined in the amended employment agreement that she drafted, meant anything other than the company’s

stan dard separation agreement and release. She presented no evidence that she ever informed anyone at the company at any time before she signed her amended employment agreement that she understood the undefined term “release” to mean anything other than
the c ompany’s standard agreement. Civil Code section 1440 does not help her.
Armour next contends that she satisfied the release condition in her employment agreement by providing a document that she was ready, willing, and able to sign. She is
incorrect. Th e June 2007 agreement expressly provided that “[t]he severance offer contained in this Letter will expire and be of no further force and effect at midnight in

1 At her deposition, Armour identified substantially similar agreements that were given to employees terminated in earlier RIF’s. She acknowledged that before the company’s April 2006 RIF, she had “recommended” use of the standard form separation agreement and release and had also “strongly advised[d] that no alteration whatsoever beyond completing the template be made to the content of these documents.”10

Atlanta, Georgia on July 2, 2007

. . . . ” The proposed unsigned release that Armour
claims satis fied the condition was e

- mailed by her counsel on July 1 2, 2007 , which was
10 days after the agreement’s July 2, 2007 expiration date. Armour presented no evidence showing that she proffered any form of release before the July 2, 2007 deadline.
Because she failed to raise a triable issue of material fact concerning her satisfaction of
the r elease condition in her employment agreement, the trial court properly granted summary adjudication in favor of defendants on her first cause of action.

B. Claimed Breach of the Movius R IF P olicy
Armour c ontends that the trial court erred in granting summary adjudication on her
third cause of action because there was a triable question of fact about the company’s “real reason” for terminating her

. She argues that h e r January 19, 2007 termination letter
informed her that her employment was being terminated “ ‘ due to restructuring

. ’ ” That, she claims, entitled her to severance benefits under the Movius RIF policy for employees involuntarily terminated “ ‘ due to a red uction in force/downsizing

. . . or job
elimination. ’ ” Armour argues that the trial court “mistakenly” determined that her failure to move to Georgia made her ineligible under the policy

. We disagree. Defendants presented evidence establishing the terms of the RIF policy , which expressly did not apply to “terminations for . . . refusal to be relocated.” Arun Sobti, t he company’s chairman and chief executive officer , declared that he “offered [ Armour ] a position with IP Unity Glenayre in Atlanta, and tol d [her] that her continued employment with IP Unity Glenayre would be contingent on her relocating [to] Atlanta. ” Sobti declared that “ [Armour] told me that she did not want to relocate to Atlanta and would not accept the position. [Her] refusal to reloc ate factored into the decision to terminate her employment as a result of the reduction in force

. . . . ” Armour’s deposition testimony was consistent with Sobti’s account . She acknowledged that she had been offered and had turned down a position with t he11

company in Atlanta because she “didn’t want to move to Georgia where the new company was going to be headquartered

. ” She knew that turning down the position in Atlanta would likely result in the termination of her employment. She “told the CEO that
he should make Tim Cohen . . . the general counsel of Movius.” She “suggested that Tim Cohen replace [her],” and she understood that she had “given her spot away” by doing so. This evidence satisfied defendants’ initial burden of showing that Armour refuse d to relocate to Georgia , which made her in eligible for severance benefits under the Movius
RIF policy . The burden then shifted to her to raise a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(1) ; Aguilar , supra , 25 Cal.4th at p. 850 .) In an attempt to do so , Armour submitted a declaration asserting that she “was never asked to relocate to Georgia by Arun Sobti or anyone else at IP Unity. Nor was I ever told by Arun Sobti or anyone else that my job at IP Unity Glenayre was dependent on my moving to Georgia.” Defendants objected to this evidence as irrele vant because it contradicted Armour’s deposition testimony. The trial court sustained the objection , and Armour challenges that ruling on appeal

. Her challenge is without merit. “It is well

- established that ‘a party cannot create an issue of fact by a de claration which contradicts his prior discovery responses. ’ [Citation s .]” ( Whitmire v. Ingersoll

Rand Co

. (2010) 184 Cal.App.4th 1078, 1087.) “ ‘ When discovery, properly used, makes it “perfectly plain that there is no substantial issue to be tried” [ci tation], section 437c, Code of Civil Procedure, is available for prompt disposition of the case.’ [Citations.] ” ( D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 ( D’Amico ) , disapproved on another ground in Woodland Hills Residents Assn. Inc. v. C i ty Council (1979) 23 Cal.3d 917, 944 .) “Moreover, when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirem ents applicable in a normal case are relaxed or altered in their operation.” ( D’Amico , at p. 21 .) “The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in12

other contexts . . . admissions against inte rest have a very high credibility value. This is especially true when . . . the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose
is to elicit facts. Accor dingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable
issues of fact (as opposed to legal issues) between the parties, it is entitled to and should
receive a kind of defe rence not normally accorded evidentiary allegations in affidavits. [Citation.]” (

D’Amico , at p. 22.)

“ Although our review of a summary judgment motion is de novo, we review the
trial court ’ s final rulings on evidentiary objections by applying an abuse of discretion
standard. ” ( Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) We discern no abuse
of discretion here. Armour’s assertion that she “ was never asked to relocate to Georgia , ” was contradicted by her deposition testimony that she had been offered a position in Georgia

. It seems plain that t he offer of a position in Georgia contains the implicit requirement of a relocation to Georgia

. Armour certainly understood th e offer that way

. A t her deposition, she testified that she turned the offer down because she did not want to move to Georgia

. The trial court properly excluded this portion of Armour’s declaration

. Armour’s second assertion, that she was never “told

. . . that [her] job at IP Unity Glenayre was dependent on [her] moving to Georgia , ” was also properly excluded

. Armour maintains that this assertion did not literally contradict her deposition testimony that she knew “that not accepting the position

. . . would likely result in the termination of [her] employment , ” since “[a] ‘likely result’ is different than a certainty.” That may be

true , but it is also irrelevant , because other deposition testimony showed that Armour fully understood that by declin ing the offer of a position in Georgia and suggesting that Cohen replac e her , sh e had “given her spot away.” Armour’s deposition testimony established that s he was a highly

- placed executive who had “played a pretty instrumental role” in the transactions that resulted in the13

creation of the new company . As senior vice

- presi dent and corporate counsel of the acquiring company , Armour would have understood that the new company would not
need two executives in that position. Yet she declined a position in Georgia and “ told the CEO that he should make Tim Cohen, who was the gene ral counsel of the Georgia company, the general counsel of Movius.” She “ suggested th at Cohen repla ce [ her ] , ” and by doing so, gave her spot away

. H er deposition testimony established that she did not
need to be told point blank that she would be terminated if she did not move. The
statements in her declaration w ere properly excluded as irrelevant.
Armour insists, however, that “[n]ot wanting to move is not a refusal to move” and “[t]urning down an opportunity to move is not a refusal to move. ” H er semantic argument s are not persuasive

. The re are many ways in which a senior corporate
executive can communicate a refusal to relocate without expressly invoking the word “refuse.” To “ refuse ” means “to express oneself as unwilling to accept” or “to show or express unwillingness to do or comply with.” ( Merriam

- Webster’s Collegiate Dict. (10th ed. 1999) p p

. 983

- 984 .) Here, Armour unequivocally expressed an unwillingness to move to Georgia. Sh e turned down a position with the new company there and told the
company, its investors, and its shareholders that she did not want to relocate to Georgia. In short, she “ refused ” to move to Georgia. ( Ibid .) That refusal made her ineligible for
severance benefits under the Movius RIF policy , as the trial court properly determined

. Relying on her January 17, 2007 termination letter and on the June 5, 2007 e

- mail
she received from the company, neither of which mentio ned her refusal to relocate,
Armour next argues that there was a triable issue of fact about the company’s “real reason” for her termination. To the extent she claims she was entitled to benefits under
the Movius RIF policy because the company did not men tion her refusal to relocate in its
written correspondence with her, we reject the contention. It was undisputed that she refused to relocate to Georgia and that her refusal to relocate “factored into the decision to terminate her employment as a result o f the reduction in force.” There is nothing14

inconsistent about a termination “due to restructuring” and a termination resulting from a
failure to relocate. The terms are not mutually exclusive

. O ne can reasonably conclude
from the evidence in this case that Armour’s position w as eliminated “due to restructuring” after she refused to relocate to Georgia and “told the CEO that he should make Tim Cohen . . . the general counsel of Movius,” giving her spot away. The company’s wording of its severance letter did not create a triable issue of fact.
Armour next a sserts that IP Unity Glenayre “had no right to insist that [she] move to Georgia” because her original employment contract specified that her primary work location would be in Milpitas. S he does not develop the point further

. She does not explain how the provision she relies on entitled her to severance under the employment agreement or under the Movius RIF policy. Moreover, i t is not clear that the provision
she relies on survived the amendment of her employment contract. “ ‘ When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.’ [Citations.]” ( Ochoa v. Pacific Gas &
El ectric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 ( Ochoa ) .) Armour’s assertion here fails for a more fundamental reason

. S he did not raise the argument below

. “ ‘ Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue an d the trial court did not have an opportunity to consider. ’ ” ( Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.) “It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.” ( Ochoa , supra , 61 Cal.App.4th at p. 1488, fn. 3 [refusing to consider argument that Ochoa failed to raise in opposition to
the defenda nt’s motion for summary judgment] .) We deem the argument forfeit ed.

III. Disposition The judgment is affirmed

.15 ___________________________ Mihara, J.

WE CONCUR:

_____________________________ Premo , Acting P. J.

_____________________________ M árquez , J.