Filed 4/18/23 Frank v. EVOLV Integrated Technologies Group CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JAMES JOSEPH FRANK,

Plaintiff and Appellant,

 v.

EVOLV INTEGRATED 

TECHNOLOGIES GROUP, INC. 

et al.,

Defendants and 

Respondents.

B314796

(Los Angeles County

Super. Ct. No. BC722025)

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Daniel S. Murphy, Judge. Affirmed.

Amezcua-Moll & Associates and Rosemary Amezcua-Moll

for Plaintiff and Appellant. 

Kull + Hall, Robert F. Kull and Kevin P. Hall for

Defendants and Respondents KBLED, Inc., All-In Energy 

Group LLC and Kenneth Bruce Shaevel.

___________________
2

After EVOLV Integrated Technologies Group, Inc.

terminated his employment, James Joseph Frank sued, among 

others, EVOLV; Kenneth Bruce Shaevel, EVOLV’s chief 

executive officer; KBLED, Inc., a company owned in part by 

Shaevel; and All-In Energy Group, LLC, an investor in EVOLV,

for wrongful termination, breach of contract, unlawful retaliation 

and unfair business practices. The trial court sustained

demurrers and dismissed Frank’s causes of action for wrongful 

termination and unfair business practices. The court then 

granted the motion for summary judgment filed by Shaevel, 

KBLED and All-In as to the remaining claims, ruling there was 

no evidence to support the claims that Shaevel, KBLED and AllIn were liable to Frank under joint employer or alter ego theories.

We affirm the judgment entered in favor of Shaevel, KBLED and 

All-In after the claims involving the remaining defendants were 

resolved.

FACTUAL AND PROCEDURAL BACKGROUND

1. Formation of EVOLV

In May 2017 INESA International Corp., wholly owned by 

Feilo International Trade Co., and KBLED entered a joint 

venture agreement to form E-Street Technology, Inc., to market 

and sell LED lighting products supplied by INESA. INESA 

agreed to make an initial capital contribution of $700,000 for a 

70 percent ownership interest and to provide a $1.5 million line of 

credit to E-Street. KBLED agreed to make an initial capital 

contribution of $100,000, followed by a $200,000 contribution by 

December 31, 2019, for 30 percent of E-Street. The agreement 

provided that INESA would appoint three board members,

KBLED would appoint two board members, and Shaevel would 

serve as chief executive officer. Shaevel, as president of KBLED, 
3

signed the joint venture agreement, as did Qi Li, chief executive 

officer of INESA. The parties renamed the newly formed 

company EVOLV. 

Separately, in lieu of KBLED investing in EVOLV and to 

shield KBLED from the risks of a minority ownership interest in 

a start-up company, Shaevel, Bruce Merino (the majority 

shareholder of KBLED) and Jamie Shaevel (Shaevel’s son)

formed All-In to hold the stock in EVOLV and to make KBLED’s 

required investment in the new company. Shaevel owned 

40 percent of All-In and was its president. 

In June 2017 INESA and All-In entered into a 

shareholders’ agreement for EVOLV. The shareholders’ 

agreement provided it superseded any conflicting terms in the 

joint venture agreement. The shareholders’ agreement defined 

“Corporation” as EVOLV, its successors, any surviving or 

resulting entities following a merger or a consolidation and “any 

entity controlled by or under common control with the 

Corporation.” “Shareholder” was defined as the parties to the 

agreement and any “permitted transferee” who acquired shares 

subject to the provisions of the agreement. Li, as president of 

INESA, and Shaevel, as president of All-In, signed the 

shareholders’ agreement. 

Shaevel and Merino, appointed by All-In, and Li and two 

others appointed by INESA were named directors of EVOLV.

INESA made its full initial contribution to EVOLV. Rather 

than a $100,000 contribution from All-In, Shaevel and Jamie

Shaevel each contributed $50,000 from their personal bank 

accounts directly to EVOLV. Shaevel explained they made those 

payments because “[a]s a partner of All-In, we agreed to fund 

EVOLV.” Shaevel and/or KBLED also paid for some marketing 
4

expenses for EVOLV. All-In never provided any funding to 

EVOLV. 

2. Frank’s Employment with EVOLV 

Frank and EVOLV entered a written employment 

agreement, and Frank began working as EVOLV’s sales director

for national accounts beginning July 1, 2017. The agreement 

defined “Company” as “EVOLV Integrated Technologies Group 

Inc.” Shaevel signed the agreement on behalf of EVOLV as its 

president and chief executive officer. The agreement outlined 

Frank’s duties, which included providing reports to the president 

or the board about sales activities and results and entering

contracts with customers for LED lighting products. Section 9 

detailed the bases for termination of Frank’s employment, which 

included the failure to meet sales projections and gross 

negligence or willful misconduct resulting in material harm to 

EVOLV. The agreement provided Frank with 30 days to cure 

any failure to meet sales projections or to perform the obligations 

of his job. 

On January 4, 2018, approximately six months after Frank 

began working at EVOLV, Shaevel emailed Frank requesting a 

meeting to discuss a lack of sales and issues relating to the cost of 

sales and Frank’s expense reports. On January 17, 2018 Frank 

was suspended based on concerns that he was not acting in the 

best interest of the company. Five days later EVOLV’s board of 

directors terminated Frank’s employment. According to the 

termination letter, signed by Shaevel, Frank “inappropriately 

and secretly acted to get the President and CEO (me) terminated 

and to form another company” to handle sales; failed to submit 

“truthful and reasonable expense reports”; failed to make sales 

and lacked accountability for his daily activities; conspired with 
5

other employees “to misappropriate and disseminate confidential 

information about another company in which I am an owner”;

and made defamatory comments about company personnel. 

3. Frank’s Lawsuit and Operative Complaint 

Frank filed his original complaint on September 18, 2018, 

naming as defendants EVOLV, Shaevel, KBLED, All-In, INESA 

and Feilo, and alleging causes of action for wrongful termination, 

breach of written contract, retaliation in violation of Labor Code 

section 1102.5 and unfair business practices in violation of 

Business & Professions Code section 17200 et seq. Frank’s 

wrongful termination and unfair business practices causes of 

action were dismissed after the trial court sustained the 

defendants’ demurrers. Following several amendments, Frank 

filed a fourth amended complaint in March 2021 alleging causes 

of action against the defendants for breach of written contract 

and retaliation in violation of Labor Code section 1102.5. 

As alleged in the operative pleading, Frank and EVOLV

entered into a written agreement for employment on July 1, 

2017, which EVOLV breached on January 22, 2018 by 

terminating him without cause. Frank further alleged the 

defendants retaliated against him because he and a coworker, 

Sam Bernal, “complained of harassment by Shaevel” and “also 

complained of what they believed to be embezzlement (violation 

of Penal Code 503).” For both causes of action, Frank summarily 

alleged that “each and every Defendant acted in concert with 

each other, [and] was the joint employer of Plaintiff and the alter 

ego of each other.” 
6

4. The Motion for Summary Judgment

Shaevel, KBLED and All-In moved for summary judgment 

in December 2020.1 They argued the undisputed evidence 

established they were neither joint employers of Frank nor alter 

egos of EVOLV. Accordingly, they argued, they could not be 

liable for any breaches of the employment contract or any 

retaliation against Frank. They further argued, if a triable issue 

of material fact existed as to joint employer or alter ego status, 

there was no dispute that EVOLV terminated Frank with cause 

pursuant to the employment agreement and no evidence of

Shaevel’s embezzlement from EVOLV to support Frank’s 

retaliation claim. 

Frank opposed the motion,

2

contending Shaevel was his

employer because he exercised control over Frank’s wages and 

working conditions. Frank suggested KBLED and All-In should 

also be considered his employer because Shaevel was acting on 

their behalf. Frank argued disputed material facts existed 

whether his employment agreement had been breached because 

he was not given 30 days to cure any issues with his performance 

and whether the reasons for firing him were pretextual. In his 

1

Shaevel, KBLED and All-In directed their motion at the 

then-operative third amended complaint. While the motion was 

pending, the parties stipulated to the filing of Frank’s fourth 

amended complaint. Shaevel, KBLED and All-In then filed a 

notice correcting the title of their motion to direct it to the fourth 

amended complaint. 

2

Frank filed an opposition memorandum with evidence and 

two supplemental oppositions after further discovery, including 

taking Shaevel’s deposition as KBLED’s person most 

knowledgeable. 
7

declaration in opposition to the motion, Frank stated that

Shaevel decided to terminate him because “he was angry that 

Sam Bernal and I both raised issues about him and what we 

perceived was embezzlement,” including “concerns of 

inappropriate use of Evolv personnel and resources by Shaevel.” 

Regarding his alter ego allegations, Frank conceded 

Shaevel was not the alter ego of EVOLV because Shaevel was not 

a shareholder of EVOLV, but he contended EVOLV was the alter 

ego of Shaevel. In support of this claim, Frank argued EVOLV 

was undercapitalized because only $450,000 of the intended

initial $1 million capital contribution had been funded and 

EVOLV’s operating costs exceeded that limited capitalization;

Shaevel and Jamie Shaevel had personally funded EVOLV, 

rather than KBLED, in contravention of the joint venture 

agreement; All-In was set up so KBLED could “avoid risk”; and 

EVOLV was dissolved in January 2019 even though all its 

liabilities had not been paid. 

In his opposition separate statement Frank disputed the 

evidence presented with the moving papers to establish that 

KBLED and All-In were not the alter egos of EVOLV, that 

Shaevel, KBLED and All-In were not joint employers of Frank 

and that Frank was terminated for good cause. 

5. The Trial Court’s Ruling

The trial court held a hearing on June 21, 2021 and issued 

its decision granting the motion for summary judgment on 

June 23, 2021.3The court ruled Frank failed to present any 

evidence to support imposition of liability for breach of contract 

3 No court reporter was present at the hearing.
8

or violation of Labor Code section 1102.5 against Shaevel,

KBLED or All-In. 

The court explained that Shaevel (in his individual 

capacity), KBLED and All-In did not sign the employment 

contract and Frank presented no evidence demonstrating they 

were signatories to the contract or otherwise liable as 

nonsignatories based on joint employer or alter ego theories. The 

court acknowledged that Shaevel played a role in hiring and 

firing Frank and communicating with Frank about his expense 

reports, but the court determined the undisputed evidence 

demonstrated Shaevel was acting on behalf of EVOLV as its 

president, chief executive officer and board member rather than 

as a joint employer. As to KBLED and All-In, Frank’s lone 

theory was that Shaevel had been acting on behalf of those two 

companies when dealing with Frank; but, because Shaevel’s 

actions were as a corporate officer of EVOLV and not as a joint 

employer, Shaevel’s other relationships with KBLED and All-In 

did not create liability for those entities. Regarding alter ego 

liability, the only evidence submitted by Frank that Shaevel, 

KBLED and All-In were alter egos of EVOLV was EVOLV’s 

purported undercapitalization. The court found this evidence 

was insufficient to pierce the corporate veil because it was 

undisputed that EVOLV had received $800,000 (not $450,000 as 

Frank contended) in initial funding and the remaining $200,000 

was not due until December 31, 2019, by which time EVOLV had 

already been dissolved. 

6. Trial of INESA, Judgment and Notice of Appeal

INESA failed to appear and was tried in absentia. The 

court found in favor of Frank for breach of contract and violation 

of Labor Code section 1102.5 and awarded him $375,286.67 in 
9

special damages, $220,000 in emotional distress damages and 

$180,633.32 in attorney fees and costs. The court dismissed 

EVOLV and Feilo without prejudice and entered judgment in 

favor of Frank against INESA and “[i]n favor, jointly and 

severally” of KBLED, All-In and Shaevel and ordered Frank to 

pay them $251,250 in attorney fees and $5,798.07 in costs. 

Frank filed a timely notice of appeal.4

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only 

when “all the papers submitted show that there is no triable 

issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” (Code Civ. Proc., § 437c, 

subd. (c).) We review a grant of summary judgment de novo 

(Samara v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the 

evidence in the light most favorable to the nonmoving party and 

drawing all reasonable inferences in favor of that party (Weiss v. 

People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 

864; Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618), decide independently whether the facts not 

subject to triable dispute warrant judgment for the moving party 

as a matter of law. (Hampton v. County of San Diego (2015) 

62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 

610, 618.)

4

Frank filed his notice of appeal on August 20, 2021, several 

weeks before the trial court entered judgment on September 10, 

2021. We exercise our discretion to treat Frank’s premature 

notice of appeal as timely filed immediately after entry of 

judgment. (Cal. Rules of Court, rule 8.104(d)(2).) 
10

When a defendant moves for summary judgment in a 

situation in which the plaintiff would have the burden of proof at 

trial by a preponderance of the evidence, the defendant may, but 

need not, present evidence that conclusively negates an element 

of the plaintiff's cause of action. Alternatively, the defendant 

may present evidence to “‘show[] that one or more elements of the 

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

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 

(Aguilar); accord, Regents of University of California v. Superior 

Court, supra, 4 Cal.5th at p. 618 [“[a] defendant seeking 

summary judgment must show that the plaintiff cannot establish 

at least one element of the cause of action”]; Code Civ. Proc., 

§ 437c, subd. (p)(2).) “The moving party bears the burden of 

showing the court that the plaintiff has not established, and 

cannot reasonably expect to establish, the elements of his or her 

cause of action.” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705, 

internal quotation marks omitted; accord, Wilson v. 21st Century 

Ins. Co. (2007) 42 Cal.4th 713, 720; see Kahn v. East Side Union 

High School Dist. (2003) 31 Cal.4th 990, 1002-1003 [“the 

defendant must present evidence that would preclude a 

reasonable trier of fact from finding that it was more likely than 

not that the material fact was true [citation], or the defendant 

must establish that an element of the claim cannot be

established, by presenting evidence that the plaintiff ‘does not 

possess and cannot reasonably obtain, needed evidence’”].)

Once the defendant’s initial burden has been carried, the 

burden shifts to the plaintiff to demonstrate, by reference to 

specific facts, not just allegations in the pleadings, there is a 

triable issue of material fact as to the cause of action. (Code Civ. 

Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) 
11

“There is a triable issue of material fact if, and only if, the 

evidence would allow a reasonable trier of fact to find the 

underlying fact in favor of the party opposing the motion in 

accordance with the applicable standard of proof” at trial. 

(Aguilar, at p. 850; accord, Lugtu v. California Highway Patrol

(2001) 26 Cal.4th 703, 722.)

2. Governing Law

Frank’s appeal challenges only the trial court’s order

granting summary judgment in favor of Shaevel, KBLED and 

All-In on his causes of action for breach of contract and unlawful 

retaliation. In the trial court Frank did not dispute that the 

employment agreement “was entered into . . . by and between 

plaintiff and defendant [EVOLV], as the sole identified employer” 

or that “[t]he Agreement was an integrated contract.” His 

arguments on appeal center on Shaevel’s, KBLED’s and All-In’s 

potential liability as joint employers with EVOLV or under 

theories of alter ego. Neither position has merit.

a. Joint employers

“Joint employment occurs when two or more persons 

engage the services of an employee in an enterprise in which the 

employee is subject to the control of both.” (Morales v. 22nd

District Agricultural Association (2018) 25 Cal.App.5th 85, 94, 

fn. 14, internal quotation marks omitted.) To be a joint employer 

an entity must have had the ability “(a) to exercise control over 

. . . wages, hours or working conditions, [or] (b) to suffer or permit 

[the] work, or (c) to engage, thereby creating a common law 

employment relationship.” (Martinez v. Combs (2010) 49 Cal.4th 

35, 64.)

“‘There is no magic formula for determining whether an 

organization is a joint employer. Rather, the court must analyze 
12

myriad facts surrounding the employment relationship in 

question. No one factor is decisive.” (St. Myers v. Dignity

Health (2019) 44 Cal.App.5th 301, 311, cleaned up.) “Factors to

be taken into account in assessing the relationship of the parties

include payment of salary or other employment benefits and

Social Security taxes, the ownership of the equipment necessary

to performance of the job, the location where the work is

performed, the obligation of the defendant to train the employee,

the authority of the defendant to hire, transfer, promote,

discipline or discharge the employee, the authority to establish

work schedules and assignments, the defendant’s discretion to

determine the amount of compensation earned by the employee,

the skill required of the work performed and the extent to which

it is done under the direction of a supervisor, whether the work is

part of the defendant’s regular business operations, the skill

required in the particular occupation, the duration of the

relationship of the parties, and the duration of the plaintiff’s

employment.’ . . . The most important factor is ‘“the defendant’s

right to control the means and manner of the workers’

performance.”’” (Id. at pp. 311-312.)

b. Alter ego

“Alter ego is essentially a theory of vicarious liability under 

which the owners of a corporation may be held liable for harm for 

which the corporation is responsible where, because of the 

corporation’s utilization of the corporate form, the party harmed 

will not be adequately compensated for its damages.” (Doney v. 

TRW, Inc. (1995) 33 Cal.App.4th 245, 249.) “‘Ordinarily, a 

corporation is regarded as a legal entity, separate and distinct 

from its stockholders, officers and directors, with separate and 

distinct liabilities and obligations. [Citations.]’ [Citation.] ‘[T]he 
13

corporate form will be disregarded only in narrowly defined 

circumstances and only when the ends of justice so require.’ 

[Citation.] Before a corporation’s obligations can be recognized as 

those of a particular person, the requisite unity of interest and 

inequitable result must be shown. [Citation.] These factors 

comprise the elements that must be present for liability as an 

alter ego.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 411; 

see Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 

1341 [“‘when the corporate form is used to perpetuate a fraud, 

circumvent a statute, or accomplish some other wrongful or 

inequitable purpose, the courts will ignore the corporate entity 

and deem the corporation’s acts to be those of the persons or 

organizations actually controlling the corporation, in most 

instances the equitable owners’”].)

On occasion, courts have recognized “reverse veil piercing,” 

a situation in which an outside creditor seeks “to satisfy the debt 

of an individual through the assets of an entity of which the

individual is an insider.” (Curci Investments, LLC v. Baldwin

(2017) 14 Cal.App.5th 214, 221 [limited liability company may be 

added as a judgment debtor where the liable defendant was the 

sole shareholder of the limited liability company and where the

interest of justice required disregarding the limited liability 

company as a separate legal entity]; Postal Instant Press, Inc. v. 

Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1513 [“[s]ome courts 

have recognized a variant of the alter ego doctrine, called third 

party or ‘outside’ reverse piercing of the corporate veil, by which 

the corporate veil is pierced to permit a third party creditor to 

reach corporate assets to satisfy claims against an individual 

shareholder”].) However, in cases involving a corporation, as 

opposed to a limited liability company, “a third party creditor 
14

may not pierce the corporate veil to reach corporate assets to 

satisfy a shareholder’s personal liability.” (Postal Instant Press, 

at pp. 1512-1513.)

3. Summary Judgment Was Properly Granted in Favor of 

Shaevel

As discussed, Frank conceded in the trial court—and does 

again on appeal—that Shaevel was not the alter ego of EVOLV. 

However, as he did in the trial court, on appeal Frank argues 

there are disputed issues of material fact that could justify 

application of reverse veil piercing to find EVOLV is the alter ego 

of Shaevel, which would make EVOLV vicariously liable for 

Shaevel’s actions against Frank. 

In support of this argument Frank notes only that Shaevel 

and his son wrote checks directly to EVOLV for its initial 

capitalization and the two Shaevels and Merino were the owners 

of All-In. Frank fails to cite, let alone discuss, any authority that 

would suggest reverse veil piercing is appropriate based on those 

minimal facts. (See Badie v. Bank of America (1998) 

67 Cal.App.4th 779, 784-785 [“[w]hen an appellant fails to raise a 

point, or asserts it but fails to support it with reasoned argument 

and citations to authority, we treat the point as waived”]; see also

In re A.C. (2017) 13 Cal.App.5th 661, 672.) 

Even if not forfeited, the argument lacks merit. Reverse 

veil piercing does not apply here because EVOLV was 

incorporated and owned by All-In and INESA; Shaevel was not a 

shareholder of EVOLV. (See Postal Instant Press, Inc., supra, 

162 Cal.App.4th at pp. 1512-1513.) More fundamentally, 

whether EVOLV could be liable for actions taken by Shaevel—

that is, EVOLV’s potential status as Shaevel’s alter ego—is 

immaterial and thus not a basis on which summary judgment 
15

could be denied. (See Romero v. American President Lines, Ltd.

(1995) 38 Cal.App.4th 1199, 1203 [“‘[t]he presence of a factual 

dispute will not defeat a motion for summary judgment unless 

the fact in dispute is a material one’”]; Cal. Rules of Court, 

rule 3.1350(a)(2) [“‘[m]aterial facts’ are facts that relate to the 

cause of action . . . that is the subject of the motion and that could 

make a difference in the disposition of the motion”].) EVOLV was 

indisputably Frank’s employer. If any entity or person was liable 

for breach of contract or unlawful retaliation it was EVOLV. To 

defeat Shaevel’s motion, Frank needed to present evidence that 

Shaevel was liable for EVOLV’s purported misconduct, not vice 

versa. As the trial court found, Frank failed to do that: Although 

Frank argued in his reply brief in this court that triable issues of 

fact exist on the underlying issues of liability, he has presented 

no argument on appeal that Shaevel (or KBLED or All-In, for 

that matter) is directly liable for breaching the employment 

agreement or for retaliating against him. Disputed issues about 

EVOLV’s direct liability do not affect the trial court’s decision to 

grant Shaevel’s motion.

Frank’s conclusory argument that disputed issues of 

material fact existed as to Shaevel’s status as his joint employer 

is equally without merit. Frank contends, without elaboration,

that, because there is substantial evidence of alter ego, “it stands 

to reason a trier of fact can reasonably conclude that Respondents

[Shaevel, KBLED and All-In] are the joint employers of 

Appellant.” That naked assertion is doubly flawed. 

First, as discussed, it was conceded that Shaevel was not

the alter ego of EVOLV, Frank’s employer; and there was no 

evidence that reverse veil piercing can be applied to find EVOLV 

was Shaevel’s alter ego, even if that had any bearing on Shaevel’s 
16

status as a joint employer. Second, the tests for alter ego liability 

and joint employer status are entirely different. Assuming A is 

the employee of company B, whether company C is A’s joint 

employer depends on C’s relationship to A (primarily C’s right to 

control A’s work performance), not, as in an alter ego evaluation, 

C’s relationship to B (primarily whether there is a unity of 

interest between B and C). Whether there is substantial 

evidence of alter ego tells us nothing about the sufficiency of the 

evidence for a joint employer finding. And Frank fails to point us 

to any evidence in the record that creates a triable issue of 

material fact on that issue. (See generally Meridian Financial 

Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [“[t]he 

reviewing court is not required to develop the parties’ arguments 

or search the record for supporting evidence and may instead 

treat arguments that are not developed or supported by adequate 

citations to the record as waived”]; ComputerXpress, Inc. v. 

Jackson (2001) 93 Cal.App.4th 993, 1011 [“[i]t is not the duty of a

reviewing court to search the record for evidence on a point raised 

by a party whose brief makes no reference to the pages where the 

evidence can be found”].) 

4. Frank’s Joint Employer Argument Fails as to KBLED 

and All-In

Frank advances as to KBLED’s and All-In’s liability as 

joint employers the identical, minimalist it-stands-to-reason 

argument made with respect to Shaevel. It fails for the same 

reason: Evidence of alter ego liability, even if it existed, is not 

evidence of joint employer status.
17

5. Frank Has Forfeited His Undeveloped and Conclusory 

Arguments Concerning Alter Ego Liability as to KBLED 

and All-In

Arguing under the more conventional alter ego theory that 

KBLED and All-In were the alter egos of EVOLV and, therefore, 

liable for EVOLV’s breach of contract and retaliatory actions, 

Frank lists 22 “material facts” that he asserts “could lead the 

trier of fact to find alter ego liability.” But he fails to explain how 

those facts are material—that is, how they would support a 

finding that KBLED or All-In controlled EVOLV or were 

sufficiently interconnected to it to warrant disregarding EVOLV’s 

corporate form. Again, it is not our task to create Frank’s 

argument for him. (See Meridian Financial Services, Inc. v. 

Phan, supra, 67 Cal.App.5th at p. 684.) Further, in support of 

these 22 material facts in this court, Frank cited 37 pages from

Shaevel’s deposition as KBLED’s person most knowledgeable.

Yet Frank did not present that evidence in opposition to the 

motion for summary judgment; he filed it to support a motion for 

leave to file a fifth amended complaint (a motion filed after the 

trial court issued its summary judgment ruling). Because Frank 

failed to identify this evidence in the trial court on summary 

judgment, we will not consider it on appeal. (See Yanowitz v. 

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [“[b]ecause this 

case comes before us after the trial court granted a motion for 

summary judgment, we take the facts from the record that was 

before the trial court when it ruled on that motion”]; Loggins v. 

Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109; 

see also Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 608

[appellate court reviews propriety of ruling on summary 

judgment “based on the record before the trial court on summary 

judgment”].)
18

Frank now also contends that EVOLV, KBLED and All-In 

are effectively the same company, relying on the definition of 

“Corporation” found in EVOLV’s shareholders’ agreement. Based 

on this definition, Frank urges us to conclude EVOLV, KBLED 

and All-In were employers of Frank and alter egos of one 

another—a theory, when properly developed, generally referred 

to as the single-enterprise rule.

5

 Frank did not make this 

argument in the trial court, and it is forfeited. (See Meridian 

Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 704 

[arguments deemed forfeited where plaintiffs’ “opposition 

separate statement does not set forth all of the facts on which 

they base their current argument” on appeal]; DiCola v. White 

Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 

676 [“‘possible theories that were not fully developed or factually 

presented to the trial court cannot create a “triable issue” on 

appeal’”]; Saville v. Sierra College (2005) 133 Cal.App.4th 857, 

872-873 [issue not asserted in opposing motion for summary 

judgment forfeited; were doctrine not applied, losing parties 

“could attempt to embed grounds for reversal on appeal into 

every case by their silence”].)6

5 Under the single-enterprise rule a “sister or affiliated”

company can be held liable under the alter ego doctrine when a

court finds that, as a matter of equity, the organization has been

operating as a single enterprise, considering the relevant factors.

(See, e.g., Troyk v. Farmers Group, Inc., supra, 171 Cal.App.4th

at p. 1341.)

6 Even were we to consider the merits of this argument for 

the first time on appeal, Frank fails to explain why a defined 

term plucked from EVOLV’s shareholders’ agreement applies in 

the context of his employment-related claims or why the 
19

For the same reason Frank has forfeited the additional 

arguments regarding alter ego he raises for the first time on 

appeal: KBLED and All-In are alter egos of Shaevel, and All-In 

is an alter ego of KBLED. In any event, as discussed, possible 

alter ego relationships between or among Shaevel, KBLED and 

All-In were immaterial absent evidence that one of those parties 

was an alter ego of EVOLV.

DISPOSITION

The judgment is affirmed. Shaevel, KBLED and All-In are 

to recover their costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

definition of “Company” in Frank’s employment contract as 

simply “EVOLV Integrated Technologies Group Inc.” does not 

control.