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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


MAYA ARMOUR,                                                         H036937
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV123547)

         v.

IP UNITY et al.,

         Defendants and Respondents.



         Plaintiff Maya Armour sued defendant 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 policy. The trial court
granted summary adjudication in favor of defendants on Armour’s first three causes of
action. The court dismissed the fourth 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 precluded summary
adjudication of her first cause of action, and (2) statements about the reason for her
termination presented a triable issue of fact that precluded 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 Company 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, IP Unity decided to acquire the assets of Glenayre Messaging, the
messaging division of Glenayre Electronics, Inc. It 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. On 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. On December 31, 2006, the
subsidiary purchased the assets of Glenayre Messaging. As part of the transaction, all
former IP Unity employees became IP Unity Glenayre employees. After the asset
                                               2
acquisition, IP Unity Glenayre remained 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 headquarters 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 would 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 the 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 an RIF. Each
was offered a severance package that included IP Unity Glenayre’s standard separation
and release agreement. The separation agreement and release that Armour received in
January 2007 provided that she would receive a lump sum payment equal to six months
                                              3
of her current base salary and payment of medical and dental benefits for six months if
she signed 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 absence. 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 severance 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 separation agreement and release 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 more 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 signed
                                              4
in full by you without modification is returned . . . .” Armour never signed the June 2007
agreement.
       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 an 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 failing 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 adjudication 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 of action was
dismissed without prejudice at her request. Judgment was entered on March 9, 2011.
Armour filed a timely notice of appeal.




                                             5
                                        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 precluded 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 adjudication
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 [the 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 triable 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 facts 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 showing 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)
                                                6
damage to plaintiff therefrom. [Citation.]” [Citation.]’ [Citation.]” (Abdelhamid v. Fire
Ins. Exchange (2010) 182 Cal.App.4th 990, 999.) Here, defendants obtained summary
adjudication 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 the 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 separation agreement and release 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 agreement “as it was
much broader and contained provisions never contemplated by” her amended
employment agreement. Her then counsel “sent a letter indicating why the agreement
was not satisfactory” and also sent “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.”
       The 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
agreement “was much broader and contained provisions never contemplated by” her
amended employment agreement. Such conclusory assertions did not create a triable
                                              7
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 unambiguously stated that the company’s payment of severance was “subject
to you signing a release of all claims against the Company.” (Italics added.) “ ‘Subject
to’ is generally construed to impose a condition precedent.” (Rubin v. Fuchs (1969) 1
Cal.3d 50, 54.) “A condition precedent is one 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 party to perform any act
under it, he must fulfill all conditions precedent thereto imposed upon himself . . . .”
(Civ. Code, § 1439.)
       The evidence before the trial court showed that Armour never signed defendants’
standard separation agreement and release or any other form of release by the stated
deadline. The 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, the trial court properly granted
summary adjudication 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 [nonbreaching 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.) “Anticipatory breach must appear only with the clearest terms of repudiation of the
                                               8
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.” (Gold Mining & Water Co. v.
Swinerton (1943) 23 Cal.2d 19, 28 (Gold Mining).)
       The company’s use of an 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 the 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.
Like 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
standard 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 company’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. The 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.”

                                             9
Atlanta, Georgia on July 2, 2007 . . . .” The proposed unsigned release that Armour
claims satisfied the condition was e-mailed by her counsel on July 12, 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 release 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 RIF Policy
       Armour contends 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 her 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 reduction 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, the
company’s chairman and chief executive officer, declared that he “offered [Armour] a
position with IP Unity Glenayre in Atlanta, and told [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 relocate 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 the
                                              10
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 refused to
relocate to Georgia, which made her ineligible 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 irrelevant 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 declaration
which contradicts his prior discovery responses.’ [Citations.]” (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” [citation], 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. City 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 requirements 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 in
                                               11
other contexts . . . admissions against interest 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. Accordingly, 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 deference 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 the offer of a position in Georgia contains the implicit
requirement of a relocation to Georgia. Armour certainly understood the offer that way.
At 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 declining the offer of a position in Georgia and suggesting that
Cohen replace her, she had “given her spot away.”
       Armour’s deposition testimony established that she was a highly-placed executive
who had “played a pretty instrumental role” in the transactions that resulted in the
                                              12
creation of the new company. As senior vice-president 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 general counsel of the Georgia
company, the general counsel of Movius.” She “suggested that Cohen replace [her],” and
by doing so, gave her spot away. Her 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 were 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.” Her semantic
arguments are not persuasive. There 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) pp. 983-984.) Here, Armour unequivocally expressed an unwillingness to
move to Georgia. She 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 mentioned 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 mention 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 of the reduction in force.” There is nothing
                                             13
inconsistent about a termination “due to restructuring” and a termination resulting from a
failure to relocate. The terms are not mutually exclusive. One can reasonably conclude
from the evidence in this case that Armour’s position was 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 asserts 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. She 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, it 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 &
Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 (Ochoa).)
       Armour’s assertion here fails for a more fundamental reason. She 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 and 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 defendant’s motion for summary judgment].) We deem the argument forfeited.


                                     III. Disposition
       The judgment is affirmed.


                                             14
                                ___________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Márquez, J.




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