Medipro Medical Staffing, LLC v. Certified Nursing etc. CA2/2 ( 2021 )

Filed 2/4/21 Medipro Medical Staffing, LLC v. Certified Nursing etc. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MEDIPRO MEDICAL B294391
STAFFING, LLC et al.,
(Los Angeles County
Plaintiffs and Super. Ct. No. BC667851)
Respondents,
v.
CERTIFIED NURSING
REGISTRY, INC. et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael L. Stern, Judge. Affirmed.
Khouri Law Firm, Michael J. Khouri and Behzad Vahidi for
Defendants and Appellants.
Rosen Saba, Ryan D. Saba and Elizabeth L. Bradley for
Plaintiffs and Respondents.
******
Two high-ranking employees of a nurse staffing company,
while still employed by that company, secretly recruited nurses
for a competitor’s staffing company. When the employees
abruptly left to start up a new office for the competitor, their
former employer sued them—and the competitor—for breach of
fiduciary duty, fraud, and several other causes of action. A jury
awarded the former employer over $3 million in lost profits and
punitive damages. The employees and competitor appealed,
challenging the verdict on a plethora of grounds, some of which
are contrary to what they argued to the trial court. Because the
general damages verdict rests upon at least one legally valid
claim that is supported by substantial evidence and unaffected by
any prejudicial error, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Nurse staffing industry, in general
Hospitals typically employ fewer nurses than they would
need if they were at full patient capacity; this built-in shortage is
not a problem because, should there be a surge of patients, the
hospitals can effectively “borrow” additional nurses on a
temporary basis from a nurse staffing company.
The arrangement between a hospital and a nurse staffing
company is fairly standardized: A hospital contracts in advance
with one or more nurse staffing companies to obtain nurses of
varying qualifications (registered nurses, licensed vocational
nurses, and certified nursing assistants) for certain rates. The
nurse staffing companies screen and hire nurses as their
employees, and maintain the nurse-employees’ names, contact
information, shift and hospital preferences, and pay rates on
their company’s registry or roster. When a hospital anticipates a
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shortage for a particular shift, it calls a nurse staffing company to
get coverage for that particular shift and will sometimes request
the more skilled and more dependable nurses by name. The
nurse staffing company subsequently bills the hospital for any
nurses it supplies on a shift-by-shift basis at the contractual rate,
takes a cut off the top, and pays the remainder directly to the
nurse.
Nurse staffing companies have what boil down to two types
of employees—the so-called “staffers” who recruit and screen
nurses for the company, and the nurses themselves. Although
most nurses are simultaneously employed by multiple nurse
staffing companies, most nurses prefer to work regularly with the
staffers whom they regard as being “really good” and will
typically not change their preferred nurse staffing company
“unless ther[e is] interference with their existing relationship
with such [company].”
In the nurse staffing industry, a nurse staffing company’s
roster or registry of nurses is its “number one asset.” Nurses are
the lifeblood of the company, and a registry populated with well-
regarded nurses and setting forth their hospital and shift
preferences and pay scales is “critical” to the staffing company’s
continued operation.
B. Medipro, generally
1. Background
Medipro Medical Staffing, LLC (Medipro) is a nurse
staffing company. It was founded in 2011 by Alex Malcolm
(Malcolm) and Luzvimin Labora (Labora). From 2011 through
2016, Labora was Medipro’s chief executive officer and ran
Medipro’s day-to-day operations, which included hiring and firing
staffers and nurses. During this time frame, Labora hired Larry
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Greter (Greter) as a staffer and he became a “regional manager”
for Medipro responsible for hiring nurses (but not staffers). Also
during this time frame, Labora and Greter built up Medipro’s
registry of nurses, which included the nurses’ names, contact
information, nursing license, hospital and shift preferences, and
their pay rates.
2. January 2017 sale
On January 5, 2017, Malcolm sold Medipro to McNair
Zimbalist (Zimbalist) and Eli Pearlman (Pearlman) (collectively,
the new owners) for $2.85 million. That transaction included
Medipro’s nurse registry.1 Malcolm gave $400,000 of the sale
price to Labora as a “bonus.”
The new owners took efforts to protect their investment.
Prior to the purchase, the new owners asked Labora and
Greter—who were at-will employees and whom the new owners
wished to retain on an at-will basis—whether they intended to
remain after the sale; both assured the new owners that they
planned on staying until they retired.
After the purchase, and to reward them for their fealty, the
new owners gave Labora the title of “President” of Medipro and
gave Greter the title of “Vice President,” although their duties did
not change. To further entice them to remain with Medipro, the
1 Although Labora, Greter and others testified or argued
below that the nurse registry belonged to Labora or Greter
because they developed it while working for Medipro, this
testimony and argument is contrary to California law, which
unequivocally establishes that the fruits of an employee’s labor
belong to the employer (Lab. Code, § 2860). This includes
employee and customer lists. (Morlife, Inc. v. Perry (1997) 56
Cal.App.4th 1514, 1526; Courtesy Temp. Serv. v. Camacho (1990)
222 Cal.App.3d 1278, 1287 (Camacho).)
4
new owners in April 2017 offered Labora and Greter an
additional bonus contingent upon their remaining at Medipro for
an additional year.
Immediately after the purchase, the new owners also asked
Labora and Greter to sign three agreements. Each signed an
Employee Confidentiality Agreement, in which each (a) agreed
that they had a “relationship of confidence and trust” with
Medipro, (b) agreed not to “use, disclose, copy, distribute . . . or
misappropriate” any of Medipro’s “[p]roprietary [i]nformation,”
which included Medipro’s “nurse lists and data,” including the
“names, addresses, compensation, specific capabilities, job
assignments and performance evaluations” of nurses, (c) agreed,
while employed by Medipro and for three years thereafter, not to
“directly or indirectly[] hire any of [Medipro’s] employees
(including nurses) or solicit any of [Medipro’s] employees and
nurses to resign from their employment or terminate their
relationship with” Medipro, and (d) agreed, “[a]t all times during
[their] employment with” Medipro, not to “enter into or engage in
any business that competes with” Medipro, to “solicit customers
. . . [or] business . . . for any business that competes with”
Medipro, or to “promote or assist . . . any person engaged in any
business that competes with” Medipro. Each signed a separate
letter agreement in which each promised while employed by
Medipro not to “engage in any other employment, occupation,
consulting or other business activity directly related to the
business in which Medipro is now involved.” And each signed an
“outside activity disclosure,” in which they represented that they
were engaged in no “activities which could compete [with] or
otherwise create a conflict of interest with [Medipro’s] interests.”
5
C. Labora’s and Greter’s plan—and execution of
that plan—to “raid” Medipro’s business to aid a competitor
Prior to working for Medipro, both Labora and Greter had
worked for Certified Nursing Registry, Inc. (Certified), one of
Medipro’s direct competitors. Certified was founded, owned and
run by Cristina Sy (Sy). Labora and Sy were “like . . . sister[s].”
Sy made it clear that both Labora and Greter had an “open offer”
to return to Certified whenever they wanted.
At nearly the same time that they signed the three
agreements with Medipro and assured the new owners that they
were intending to stay until retirement, Labora and Greter were
developing a plan to take Sy up on her open offer and to take
Medipro’s registry, as well as the best of Medipro’s nurse
employees, with them to Certified. Within days and weeks of
signing the agreements, Labora texted Greter, “We will stick
together all the way with our job . . . . We have to talk to [Sy]
what she can offer [sic],” and texted Greter and others that Sy
had “higher rates,” that Greter would depart Medipro with her,
and that Medipro “will close down” if they left. In March 2017,
Labora told her niece—who worked at Medipro—of the plan to
leave Medipro and “take all of the nurses with them.” And in
July 2017, Labora later admitted to Medipro’s new owners that
her “plan all along” was to “go[] to Certified.”
The plan had several phases.
Labora and Greter started by contacting nurses on
Medipro’s registry and informing them of their plan to leave for
Certified, which was equivalent to asking those nurses to move to
Certified with them. They did this in March 2017.
Next, Greter was to depart Medipro to set up a new office
for Certified in Glendale. Greter orally agreed with Sy in mid-
April 2017 to move to Certified, and on the basis of that
6
agreement, Sy leased new office space in Glendale. In mid-May
2017, Sy took Greter and Labora out to dinner, where they
finalized the terms of Greter’s future employment with Certified.
Two days later, Greter signed a written employment contract
with Certified, which included an unprecedented $25,000 signing
bonus to compensate for the bonus Greter would forfeit by
leaving Medipro in less than a year. Part of Greter’s job was to
“recruit for the . . . Glendale office,” and his contract with
Certified did not prohibit him from using Medipro’s registry to do
so. As Labora and Greter had planned in March, Greter told
Medipro he needed to go on medical leave in late May 2017 and,
instead of getting knee surgery, he abruptly resigned from
Medipro. Less than a week later, Greter forwarded a copy of
Medipro’s nurse registry that he had previously sent to his
personal email to his new email account at Certified. Using the
information in the registry, Greter called, texted, and emailed
several nurses on Medipro’s registry to inform them that he had
moved to Certified and invited them to contact him at Certified.
He started at Certified less than a week after he resigned from
Medipro. Nearly a month after that, Greter started contacting
nurses from a list of nurses no longer registered with Certified.
Labora remained at Medipro for nearly two months after
Greter departed, but advised him on how to get Certified’s new
office up and running, and fed him information about what was
happening at Medipro. During Greter’s first week at Certified,
Labora advised Greter not to contact a nurse who was
particularly “close” with one of the new owners, not to
immediately “book[]” “hospitals” that regularly contacted
Medipro, and to start by reaching out to “the least obvious
nurses.” During Greter’s second week at Certified, Labora told
7
Greter that the new owners had learned of Greter’s movement to
Certified and were going to send a letter to Sy advising her of
Greter’s contractual promise not to use Medipro’s nurse registry
while employed by Certified. Labora referred at least two nurses
and one of Medipro’s staffers to Certified in June and July 2017.
And in mid-July, Labora informed Greter that Medipro had
started using new computer software to manage its registry, and
disclosed the name of that software.
With Greter settled in at Certified, Labora then prepared
her departure. After Greter had orally agreed with Sy to leave
for Certified in April, Labora emailed a copy of Medipro’s registry
to her personal iCloud account. In mid-July 2017, Labora falsely
told the new owners she planned to retire in two weeks.
Tellingly, she forwarded her notice to Greter. Two days before
her scheduled last day, the new owners conducted an exit
interview. Right after that interview, Labora lost her temper,
blurted out what her “plan all along” had been, and abruptly
resigned. A week later, Labora reported for duty at Certified’s
new Glendale office. On her first day, she signed a written
contract with Certified, and received an unprecedented $50,000
signing bonus. Labora’s contract, like Greter’s, also did not
prohibit her from using Medipro’s registry in her work for
Certified.
From January through July 2017, Labora and Greter took
great efforts to conceal their plan and to protect Certified and Sy.
When the new owners asked Labora and Greter in late March
2017 whether there was any truth to what Labora’s niece had
told them about their plan to leave, both vehemently denied any
such plan. In early May 2017, Labora sent Greter an email
reminding them that “We have to have [an] alibi” for Sy. Both
8
Labora and Greter attempted to wipe clean all of the data on the
company phones they used to communicate about their plan.
When the new owners asked Labora if she knew about Greter’s
plan to go to Certified after he left, Labora denied knowing of the
plan—or even where he had gone. And, of course, neither Labora
nor Greter told the new owners of their plan until Labora’s
outburst after her exit interview.
D. The fallout from Labora’s and Greter’s plan
Once executed, Labora’s and Greter’s plan had a
devastating effect on Medipro. Forty of the “most loyal,” “most”
“reliable” and most employed nurses on Medipro’s registry, and
who had not worked for Certified in at least the first six months
of 2017, signed up with Certified once Greter and Labora started
at Certified. The departure of these high-profile nurses caused a
“snowball effect,” as other nurses began to wonder what was
“wrong” with Medipro. Medipro’s registry went from 155 nurses
at the beginning of 2017 to 37 nurses at the end.
This translated to past lost profits of $1,534,961, and future
lost profits of $1,007,238.
II. Procedural Background
A. Pleadings
On July 10, 2017, which was just four days before Labora
gave her two weeks’ notice to leave, Medipro sued Certified and
Greter.
After Labora abruptly quit and admitted her “plan all
along,” Medipro filed a first amended complaint against Labora,
Greter, Certified and Sy (collectively, defendants).2 Medipro sued
2 Medipro also sued Malcolm, although Malcolm settled right
before trial. Medipro also listed Medipro Financial, LLC as a
second plaintiff.
9
Labora and Greter for (1) fraud, through intentional
misrepresentation, negligent misrepresentation, concealment,
and false promise, (2) breach of fiduciary duty and the duty of
loyalty, (3) breach of their employment agreements as well as the
implied covenant of good faith and fair dealing, (4) intentional
and negligent interference with the prospective economic
advantage Medipro had with nurses on its registry, and (5) unfair
competition, both at common law and under Business and
Professions Code section 17200. Medipro sued Certified and Sy
for (1) aiding and abetting Labora’s and Greter’s breach of
fiduciary duty and the duty of loyalty, (2) inducing Labora’s and
Greter’s breach of contract, (3) intentional interference with the
employment contracts between Medipro and Labora and Greter,
(4) intentional and negligent interference with the prospective
economic advantage Medipro had with nurses on its registry, and
(5) unfair competition, both at common law and under Business
and Professions Code section 17200.
With regard to the breach of fiduciary duty and the duty of
loyalty claim, Medipro more specifically alleged that the breach
was effected by Labora and Greter (1) “concealing the plans from
[their] superiors, falsely informing [their] superiors that there
was no . . . plan[]” “to solicit and raid Medipro’s employees and
staff,” (2) “falsely promising [their] superiors that [they] would
consider a new employment agreement in an effort to delay
mitigating action,” (3) “failing to protect Medipro’s interests with
knowledge of Certified’s recruitment efforts,” and (4) “soliciting
Medipro employees to resign with [them].”
With regard to the fraud-related claims, Medipro more
specifically alleged that Labora and Greter had committed fraud
by (1) “affirmatively misrepresenting” and promising Medipro
10
that “there was no imminent scheme to misappropriate Medipro’s
confidential and trade secret information” (namely, Medipro’s
nurse registry) “and to raid Medipro’s employees and customers,”
when in fact they knew or should have known there was a
scheme, (2) “failing to disclose the existence of such a scheme,
even when asked,” and (3) “representing . . . that [they were] not
assisting [one another] or Certified, when [they were] in fact
planning to resign and take confidential and trade secret
information to” Certified.
B. Trial
After the trial court denied summary judgment to
defendants, the matter proceeded to a six-day jury trial. At trial,
Labora and Greter testified that they spontaneously decided to
leave Medipro on their own and denied ever recruiting any
nurses on Medipro’s registry to work for Certified. Sy denied that
she ever encouraged Labora or Greter to come work at Certified,
and denied asking them to use Medipro’s registry. All three
witnesses were repeatedly impeached with inconsistent
testimony from their pretrial depositions. Labora’s niece
backtracked as to what she told the new owners in March 2017,
but was impeached by her prior deposition testimony and by
evidence that Labora was “furious” with her for reporting her
plan to the new owners and that Labora had subsequently
threatened her. In their defense, defendants called five nurses
who testified that they had moved from Medipro to Certified
without any encouragement from Labora or Greter, but all five
admitted that they were testifying as a favor to Labora, whom
they regarded as a “personal friend” or “sister.”
The jury returned a 53-question special verdict on liability
and a general verdict on damages. The jury found all of the
11
defendants liable on all of the counts in which they were named.
The jury also awarded Medipro lost profits damages of $2.5
million—with $150,000 against Greter, $400,000 against Labora,
$200,000 against Sy, and $1.75 million against Certified. After a
brief punitive damages trial, the jury imposed punitive damages
of $100,000 against Labora, $250,000 against Sy and $250,000
against Certified.
After the entry of judgment, defendants filed motions for
new trial, for judgment notwithstanding the verdict and for
clarification of the judgment. The trial court denied all of the
motions.
Defendants then filed this timely appeal.3
DISCUSSION
In this appeal, defendants urge us to invalidate the verdict
on several grounds, including some that were explicitly
disavowed before the trial court. Where, as here, the verdict is a
general verdict that rests upon “‘“several counts”’” and the jury
was properly instructed not to award duplicative damages, we
must uphold the verdict as long as “‘“a single one of such counts
. . . is supported by substantial evidence and is unaffected by
error”’ [Citations.]” (Wysinger v. Automobile Club of Southern
California (2007) 157 Cal.App.4th 413, 427 (Wysinger).)
I. Substantial Evidence Supports the Verdict
A verdict is supported by substantial evidence if the whole
record, viewed in the light most favorable to the verdict, contains
evidence that is reasonable, credible and of solid value sufficient
to support that verdict. (People v. Boyce (2014) 59 Cal.4th 672,
691; Marshall v. Dep’t of Water & Power (1990) 219 Cal.App.3d
3 Following the filing of the notice of appeal, the trial court
entered an amended judgment that added costs.
12
1124, 1141.) In undertaking this inquiry, we “indulge . . . all
reasonable inferences” and resolve all credibility findings “in
support of the trial court’s order.” (Hilb, Rogal & Hamilton Ins.
Services v. Robb (1995) 33 Cal.App.4th 1812, 1820; City of El
Monte v. Ramirez (1982) 128 Cal.App.3d 1005, 1011-1012.)
We conclude that at least five of the counts against Labora
and Greter, and one of the counts against Sy and Certified, are
supported by substantial evidence.4
A. Breach of fiduciary duty and breach of the duty
of loyalty (against Labora and Greter)
To prevail on a claim for breach of fiduciary duty or breach
of the duty of loyalty, the plaintiff must establish (1) “‘existence of
a fiduciary duty’” or a duty of loyalty, (2) “‘breach of th[at]
. . . duty,’” and (3) “‘damage proximately caused by the breach.’”
(Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1300 [elements
for breach of fiduciary duty claim]; Huong Que, Inc. v. Luu (2007)
150 Cal.App.4th 400, 410 (Huong Que) [same elements, for
breach of the duty of loyalty].)
Substantial evidence supports the jury’s findings that
Labora and Greter owed Medipro a fiduciary duty and a duty of
loyalty. Although not every employee owes his or her employer a
fiduciary duty (e.g., Amid v. Hawthorne Cmty. Medical Group
(1989) 212 Cal.App.3d 1383, 1391), employees who are
“[c]orporate officers and directors” or who otherwise “participate[]
in [the] management of the corporation” by “exercising some
discretion[]” to “‘manage [its] day-to-day operations’” owe a
fiduciary duty to their employer. (Bancroft-Whitney Co. v. Glen
4 Indeed, because the unfair competition counts are wholly
derivative, the validity of the breach of duty and fraud-related
counts also supports the unfair competition counts.
13
(1966) 64 Cal.2d 327, 345 (Bancroft-Whitney); Gab Bus. Servs. v.
Lindsey & Newsom Claim Servs. (2000) 83 Cal.App.4th 409, 420-
421, overruled on other grounds as stated in Reeves v. Hanlon
(2004) 33 Cal.4th 1140 (Reeves).) Employees who owe a fiduciary
duty also owe a duty of loyalty. (Huong Que, supra, 150
Cal.App.4th at p. 414 [holding that all employees owe a duty of
loyalty to their employer].) Labora and Greter were high-ranking
corporate officers of Medipro—namely (and respectively), its
President and Vice President. More to the point, Labora ran
Medipro’s day-to-day operations prior to its sale in January 2017
and her job duties remained the same thereafter. Greter also
hired and fired its nurse-employees.
Substantial evidence supports the jury’s finding that
Labora and Greter breached their fiduciary duty and their duty
of loyalty to Medipro. An employee breaches his or her fiduciary
duty to the employer by “enter[ing] into a competing enterprise
which cripples or injures [the] business . . . of which he [or she]
remains an officer or director” (Sequoia Vacuum Systems v.
Stransky (1964) 229 Cal.App.2d 281, 286), and by concealing that
activity—either through nondisclosure or through affirmative lies
(Daniel Orifice Fitting Co. v. Whalen (1962) 198 Cal.App.2d 791,
800; Bancroft-Whitney, supra, 64 Cal.2d at pp. 347-348). An
employee breaches his or her duty of loyalty by “tak[ing] action
which is inimical to [the employer’s] best interests.” (Huong Que,
supra, 150 Cal.App.4th at p. 414.) While neither duty is
breached by “preparing to compete with [one’s] employer”
(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686,
719, italics omitted), that preparatory activity ripens into a
breach once the employee “use[s] his or her [employer’s] time,
facilities or proprietary secrets to build the competing business”
14
(Techno Lite, Inc. v. Emcod, LLC (2020) 44 Cal.App.5th 462, 473
(Techno Lite)). Labora and Greter breached their fiduciary duty
and duty of loyalty to Medipro when they—while still employed
by Medipro—reached out to nurses employed by Medipro to urge
them to follow them to Certified, emailed a copy of Medipro’s
nurse registry to their personal accounts, and then repeatedly
lied to Medipro’s new owners when confronted about their
activities. These acts went far beyond “preparing to compete.”
Lastly, substantial evidence supports the jury’s finding that
these breaches proximately caused Medipro to lose profits from
2017 through 2022.
B. Fraud-related claims (against Labora and
Greter)
To prevail on any of the four types of fraud claims Medipro
asserts in this case (fraud by intentional or negligent
misrepresentation, concealment, or promissory fraud), the
plaintiff must establish (1) the defendant made a
“‘“misrepresentation”’” through a “‘“false representation,
concealment, or nondisclosure,”’” (2) the defendant either knew of
the falsity (for intentional misrepresentation, concealment or
promissory fraud) or should have known of the falsity (for
negligent misrepresentation) of the statement, (3) the defendant
acted with “‘“the intent to defraud, i.e., to induce reliance,”’” (4)
the plaintiff justifiably relied on the misrepresentation, and (5)
resulting damage. (Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal.4th 951, 974; Bily v. Arthur Young & Co. (1992) 3
Cal.4th 370, 407-408.)
Substantial evidence supports the jury’s findings that each
of these elements was met. On numerous occasions, and while
still employed by Medipro, Labora and Greter affirmatively told
Medipro’s new owners that they were not in talks with Certified,
15
were not recruiting Medipro’s nurses, and were not copying
Medipro’s registry for their future use while at Certified; at the
same time, they concealed the truth.
C. Aiding and abetting Labora and Greter’s breach
of fiduciary duty and duty of loyalty (against Sy and
Certified)
To prevail on a claim that a defendant has aided and
abetted a third party to commit an intentional tort, the plaintiff
must establish that (1) the defendant “knows [the third party’s]
conduct constitutes a breach of duty,” and (2) “gives substantial
assistance or encouragement to the [third party] to so act.”
(American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225
Cal.App.4th 1451, 1475.)
Substantial evidence supports the jury’s verdict that Sy
(and, by extension, Certified) knew of Labora’s and Greter’s
breaches of their fiduciary duty and duty of loyalty to Medipro
and substantially encouraged those breaches. Sy was like a
“sister” to Labora and was long-time friends with Greter; Sy
knew Labora’s and Greter’s high-ranking positions at Medipro
and had extended them an “open offer” to return; Sy and Labora
spoke dozens of times a month in early 2017; Sy, Labora and
Greter went to dinner in May 2017 to finalize Greter’s imminent
departure from Medipro and his arrival at Certified; Sy
sweetened the proverbial pot by opening up a new office just for
Labora and Greter to run and by offering them a starting bonus
that no other Certified employee had previously been offered,
ostensibly to make up for the money they would lose from not
getting a contractual loyalty bonus from Medipro; Sy took no
action whatsoever to prohibit Labora and Greter from using
Medipro’s registry to recruit nurses for Certified; and by the end
of 2017, 40 of Medipro’s most reliable and sought-after nurses
16
had left Medipro to move to Certified. From the close
relationship of Sy, Labora and Greter as well as the acts outlined
above, the jury could reasonably infer that Sy knew precisely
what Labora and Greter were doing and encouraged them to do
it.
Sy and Certified suggest that they are nevertheless
immune from liability because Labora and Greter were at-will
employees of Medipro, free to depart whenever they wanted
without rendering Sy and Certified liable for that departure.
While “‘it is not ordinarily a tort to hire the [at-will] employees of
another for use in the hirer’s business’ [citation]” (Reeves, supra,
33 Cal.4th at p. 1149), that maxim only applies where “‘such
competition is fairly and legally conducted’ [citation]” (ibid.).
Here, it was not, as the evidence supports the jury’s finding that
Sy (and Certified) actively encouraged Labora and Greter to
violate their duties to Medipro and to raid Medipro of its chief
asset—namely, its registry and the nurses on it. That Labora
and Greter happened to be at-will employees does not excuse this
tortious conduct.
* * *
In their briefs on appeal, defendants seemingly urge us to
(1) come to a different conclusion regarding the claims discussed
above in light of conflicting evidence, and (2) evaluate whether
substantial evidence underlies Medipro’s remaining claims.5 We
5 Defendants do not challenge the jury’s finding that they
acted with sufficient malice, oppression or fraud to warrant
punitive damages. Substantial evidence supports this finding in
any event. What is more, punitive damages are legally available
for each of the claims we have found to be supported by
substantial evidence. (Civ. Code, § 3294, subd. (a) [punitive
17
reject defendants’ first argument because it urges us to do
something substantial evidence review does not allow—that is, to
reweigh the evidence. (People v. Brown (2014) 59 Cal.4th 86, 106
[“[w]e do not reweigh evidence”].) We reject defendants’ second
argument for two reasons. To begin, doing so is unnecessary
because a single valid claim is sufficient to uphold a general
damages verdict (Wysinger, supra, 157 Cal.App.4th at pp. 426-
427); here, we have found five valid claims against Labora and
Greter (and possibly seven, if we include the derivative unlawful
business practices claims), and one such valid claim against Sy
and Certified (and possibly three, if we include the derivative
unlawful business practices claims). No more is needed.
Further, defendants have not properly presented their
substantial evidence challenge for our review. Defendants assert
that “no evidence” supports several of the jury’s findings, but
their briefs summarize the facts in the light most favorable to
them by ignoring much of the evidence supporting the verdict and
by going so far as to refer to evidence excluded by the trial court
(without any accompanying argument as to why that exclusion
was wrong). This constitutes a waiver of the issue. (State Farm
Fire & Casualty Co. v. Jioras (1994) 24 Cal.App.4th 1619, 1625,
fn. 4.)
II. The Verdicts Are Unaffected By Error
Defendants raise what boil down to three categories of
attacks on the fraud, breach of duty, and aiding and abetting
claims we have found to be supported by substantial evidence:
(1) they are legally barred, (2) they are infected with evidentiary
error, and (3) they are infected with instructional error.
damages are available “[i]n an action for the breach of an
obligation not arising from contract”].)
18
A. Legal bars
In their briefs on appeal, defendants construct a “heads we
win, tails you lose” argument that was never raised below. It
goes something like this: (1) All of Medipro’s tort claims are
really claims that defendants misappropriated a trade secret
(namely, Medipro’s nurse registry), such that those claims are all
displaced by California’s Uniform Trade Secrets Act (Civ. Code,
§ 3426 et seq.) (the Act), but (2) Medipro’s nurse registry is not
actually a trade secret, so all of Medipro’s tort claims—as well as
its contract-based claims—are barred by Business and
Professions Code section 16600’s prohibition of lawsuits that
would prevent employees (here, Labora and Greter) “from
engaging in [their] lawful profession.” Because neither
component of this argument holds water, the whole thing sinks.
1. Displacement by the Act
Defendants’ argument that all of Medipro’s claims (except
their breach of contract-related claims) are displaced—and hence
invalidated—by the Act is without merit for three reasons.
a. The argument is waived
Defendants’ argument is waived. Defendants repeatedly
took the position before the trial court that “[t]his is not a trade
secret case.” They cannot now turn around and assert that it is.
(In re Griffin (1967) 67 Cal.2d 343, 348 [parties may not “‘trifle
with the courts’”]; see also Owens v. County of Los Angeles (2013)
220 Cal.App.4th 107, 121 [discussing doctrine of judicial
estoppel].)
b. The argument is without merit
The Act provides remedies for the misappropriation of
trade secrets (Civ. Code, § 3426 et seq.), but specifically preserves
(1) “contractual” and “criminal remedies, whether or not based
19
upon misappropriation of a trade secret,” and (2) “other civil
remedies that are not based upon misappropriation of a trade
secret” (id., § 3426.7, subd. (b), italics added). By negative
implication, the italicized language has been read to “‘implicitly
[displace] alternative civil remedies based on trade secret
misappropriation.’” (K.C. Multimedia, Inc. v. Bank of America
Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 954
(K.C. Multimedia).) As to these alternative civil remedies, the
Act “occupie[s] the field” and “supersede[s] other causes of action
even” if the Act “does not itself provide relief on a particular set of
facts” because the proprietary information at issue does not meet
the Act’s definition of a trade secret. (Silvaco Data Systems v.
Intel Corp. (2010) 184 Cal.App.4th 210, 234, 237 (Silvaco),
overruled on other grounds as stated in Kwikset Corp. v. Superior
Court (2011) 51 Cal.4th 310; Erhart v. Bofi Holding, Inc. (S.D.
Cal. 2020) 2020 U.S. Dist. LEXIS 57137, at *103-*104.)
Consistent with this mandate, the Act displaces another civil
remedy only if that remedy “hinges upon,” is “predicated on,”
“rests squarely on,” or is “based entirely on” allegations that a
trade secret was misappropriated. (K.C. Multimedia, at pp. 955,
959, 962; Silvaco, at p. 236.) In other words, the Act “does not
displace noncontract claims that, although related to a trade
secret misappropriation, are independent and based on facts
distinct from the facts that support the misappropriation claim.”
(Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th
495, 506 (Angelica Textile); Chromadex, Inc. v. Elysium Health,
Inc. (C.D. Cal. 2019) 369 F.Supp.3d 983, 989; cf. K.C. Multimedia,
at p. 955 [displacement reaches only claims “‘based on the same
nucleus of facts as the misappropriation of trade secrets claim
. . . ’”].)
20
The Act does not displace any of the claims upon which we
have relied to sustain the general damages verdict. The Act does
not displace Medipro’s breach of fiduciary duty and duty of
loyalty claim because that claim turns on Labora’s and Greter’s
acts, while still employed by Medipro, of contacting Medipro’s
nurses to encourage them to follow them to Certified, of e-mailing
themselves the registry, and of concealing their competitive
activities from Medipro’s new owners. While this claim rests in
part upon taking Medipro’s registry for themselves, the claim
rests on other conduct as well, as a consequence, does not “hinge[]
upon,” is not “predicated on,” does not “rest[] squarely on,” and is
not “based entirely on” the taking of the registry. (Accord, Officia
Imaging, Inc. v. Langridge (C.D. Cal. 2018) 2018 U.S. Dist.
LEXIS 226887, at *23-*24 [breach of loyalty claim not displaced
by Act].) The Act does not displace Medipro’s fraud-related
claims against Labora and Greter either because those claims
turn on their deception of Medipro’s new owners regarding their
plan to leave Medipro for Certified and their ongoing execution of
that plan. While that plan in part involved taking Medipro’s
registry, the plan involved far more; more to the point, the
gravamen of the claim was their deception, not their
misappropriation of the registry. And the Act does not displace
Medipro’s claim against Sy and Certified for aiding and abetting
Labora’s and Greter’s acts because that claim turns on Sy and
Certified’s knowledge—and encouragement—of what Labora and
Greter were doing. The fact that the misappropriation of the
registry was relevant to the calculation of damages for these
claims is of no moment because displacement turns on the basis
for liability, not for damages. (Silvaco, supra, 184 Cal.App.4th at
p. 242.) Defendants assert that Medipro is judicially estopped
21
from denying that its registry is a trade secret because it so
alleged in its operative complaint, but Medipro’s allegation—even
if accepted as gospel—does not affect the basis for its tort claims;
as a result, defendants’ assertion does not alter our displacement
analysis.
c. Any error was not prejudicial
Even if we assume that Medipro should have been required
to allege its various tort claims as a single claim for
misappropriation of trade secrets under the Act, this error did not
prejudice defendants because Medipro would have prevailed on
its misappropriation claim and that claim would have supported
the damages the jury awarded in this case.
Medipro would have prevailed on a claim for
misappropriation under the Act because (1) its nurse registry
constituted a “trade secret” within the meaning of the Act, and (2)
defendants’ use of the registry constituted “misappropriation.”
The Act defines a “trade secret” as “information” that (1)
“[d]erives independent economic value . . . from not being
generally known to the public or to other persons who can obtain
economic value from its disclosure or use”; and (2) “[i]s the
subject of efforts that are reasonable under the circumstances to
maintain its secrecy.” (Civ. Code, § 3426.1, subd. (d).) Medipro’s
nurse registry contains not only the names and contact
information of Medipro’s nurses, but also their credentials, their
hospital and shift preferences, and their pay rates with Medipro.
As a result, it constitutes a trade secret. (ReadyLink Healthcare
v. Cotton (2005) 126 Cal.App.4th 1006, 1019-1020 [“‘a customer
list procured by substantial time, effort, and expense is a
protectable trade secret’”]; Camacho, supra, 222 Cal.App.3d at p.
1287 [same]; cf. Moss, Adams & Co. v. Shilling (1986) 179
22
Cal.App.3d 124, 130 [names and publicly available contact
information alone not a trade secret].) Indeed, the registry is
Medipro’s “number one asset.” Medipro also undertook efforts to
maintain its secrecy by requiring Labora and Greter to sign
confidentiality agreements. (Whyte v. Schlage Lock Co. (2002)
101 Cal.App.4th 1443, 1454 [“Requiring employees to sign
confidentiality agreements is a reasonable step to ensure
secrecy”].) Defendants’ “us[e of] the list to solicit [nurses]”
constitutes misappropriation. (Reeves, supra, 33 Cal.4th at p.
1155.)
The Act would have also supported the damages award in
this case. The Act provides for compensatory damages
corresponding with “actual loss” (Civ. Code, § 3426.3, subd. (a)),
and damages for lost profits are a component of actual loss (see
Cellphone Termination Fees Cases (2011) 193 Cal.App.4th 298,
304). The Act also provides for punitive damages as long as they
do not “exceed[] twice” the compensatory damages award. (Civ.
Code, § 3426.3, subd. (c).) Here, the punitive damages award of
$600,000 is far less than the $2.5 million compensatory damages
award.
2. Preclusion by Business and Professions Code
section 16600
Defendants’ argument that Medipro’s claims are all barred
by Business and Professions Code section 16600 lacks merit.
Business and Professions Code section 16600 provides that
“every contract by which anyone is restrained from engaging in a
lawful profession, trade, or business of any kind is to that extent
void.” (Bus. & Prof. Code, § 16600.) Except in narrow
circumstances involving the sale of goodwill or corporate shares,
dissolution of a partnership or limited liability corporation (id.,
§§ 16601, 16602, 16602.5), or where the former employee is using
23
“the former employer’s trade secrets to unfairly compete with the
former employer” (The Retirement Group v. Galante (2009) 176
Cal.App.4th 1226, 1237), this provision renders “[a]greements not
to compete after the termination of employment . . . invalid
without regard to their reasonableness.” (Ixchel Pharma, LLC v.
Biogen, Inc. (2020) 9 Cal.5th 1130, 1152, italics added; AMN
Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28
Cal.App.5th 923, 936-946 [applying Business and Professions
Code section 16600 to former employees of a nurse staffing
company].) But this provision “does not affect limitations on an
employee’s conduct or duties while employed.” (Techno Lite,
supra, 44 Cal.App.5th at p. 471; Angelica Textile, supra, 220
Cal.App.4th at p. 509.) Here, the breach of duty and the fraud
claims we have concluded support the general damages verdict in
this case all involved defendants’ conduct while Labora and
Greter were still employed by Medipro. Thus, the prohibitions
embodied in Business and Professions Code section 16600 are
inapplicable. (Techno Lite, at p. 473 [purpose of section 16600 “is
not to immunize employees who undermine their employer by
competing with it while still employed”].)
B. Evidentiary rulings
Defendants challenge four of the trial court’s evidentiary
rulings. We review those rulings for an abuse of discretion.
(Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.)
1. Admission of Labora’s and Greter’s employment
agreements with Medipro
Defendants argue that the trial court erred in admitting
the employment agreements Labora and Greter signed with
Medipro in January 2017 because, in their view, the agreements
are void under Business and Professions Code section 16600. For
the reasons noted above, this provision is irrelevant to the breach
24
of duty and fraud-related claims that support the general verdict
for damages because the facts underlying those claims all
occurred while Labora and Greter were still employed by
Medipro. To be sure, the portion of the agreement prohibiting
them from contacting Medipro’s nurses for three years after they
left Medipro may be problematic under Business and Professions
Code section 16600. But that portion is doubly irrelevant
because (1) it has no effect while they are still employed by
Medipro, and (2) contrary to what defendants represent in their
briefs on appeal, the agreements have a severability clause that
would excise this provision and leave intact the portions
prohibiting misuse of Medipro’s proprietary information while
still employed by Medipro.
2. Admission of Labora’s and Greter’s prior felony
convictions
Defendants contend that the trial court erred in ruling that
Medipro could elicit the fact that Labora and Greter had each
been convicted of a felony—but that defendants could not elicit
which felonies or when. Based on this ruling, Medipro elicited
that Labora had been convicted of “a felony in the last 10 years”
and that Greter had been convicted of felony driving under the
influence (DUI).
The trial court did not abuse its discretion in admitting
Labora’s sanitized felony conviction and Greter’s felony DUI
conviction to impeach them. A trial court may admit a witness’s
prior felony conviction as grist for impeachment of the witness’s
credibility after considering (1) “whether the prior conviction
reflects adversely on [the witness’s] honesty or veracity,” (2)
whether the prior conviction is near or remote in time, (3)
“whether the prior conviction is for the same or substantially
similar conduct [at issue in the current litigation],” and (4)
25
whether admission of the conviction will deter the witness from
testifying. (Evid. Code, §§ 352, 788; People v. Mendoza (2000) 78
Cal.App.4th 918, 925.) Both Labora’s 2009 conviction for a drug-
related felony6 and Greter’s 2015 conviction for felony DUI
involve crimes of moral turpitude that reflect adversely on those
witnesses’ honesty or veracity (People v. Forster (1994) 29
Cal.App.4th 1746, 1756 [felony DUI]; People v. Harris (2005) 37
Cal.4th 310, 337 [felony drug possession for sale]), both
convictions are relatively recent in time, and both convictions are
for conduct unlike the conduct involved in this case, which
renders them less likely to deter Labora or Greter from testifying.
Although defendants offer a different way to balance these
factors, the trial court’s decision to admit these convictions, and
to sanitize them, was not an abuse of discretion and we are not at
liberty to reweigh the factors. Defendants also argue that the
trial court erred in not definitively ruling on the issue until after
the parties’ opening statements, thereby preventing defendants
from “fronting” the convictions before they were elicited by
Medipro. But defendants have failed to provide any authority
requiring a trial court to make its necessarily provisional in
limine rulings in order to facilitate a party’s opening statement.
Even if the trial court erred in its ruling or in the timing of
its ruling, it is not reasonably probable that this error would have
affected the outcome of the trial. (People v. Cardenas (1982) 31
Cal.3d 897, 907.) Labora and Greter were substantially
6 Although defendants’ motion in limine on this subject
represented that Labora suffered her conviction in 2006, at trial
the parties represented that it occurred in 2009. There is no
evidence on the nature of her drug-related felony (that is,
whether it is for transportation or possession for sale).
26
impeached by their prior deposition testimony and by their text
messages; the admission of their prior convictions, which were
only fleetingly mentioned, had no appreciable effect on their
otherwise damaged credibility.
3. Failure to admit Labora and Greter’s testimony
regarding their reasons for leaving Medipro and the sameness of
their job duties
Defendants assert that the trial court erred in not allowing
Labora and Greter to testify about their reasons for leaving
Medipro, which would have shown that they left—not as part of a
secret plan to help Certified—but because they were unhappy
with how Medipro’s new owners were running Medipro and were
merely exercising their right, as at-will employees, to pursue
other employment. This assertion lacks merit for the simple
reason that Labora and Greter were allowed to testify as to their
reasons for leaving Medipro: Both Labora and Greter testified
that the new owners did not “interact with” and were “cold” to
Medipro’s nurses on a personal level, and that the new owners
wanted to have Medipro’s nurses engage in what Greter viewed
as “unethical” behavior by having them look at hospitals’ sign-in
sheets for names of non-Medipro nurses to solicit; Greter also
testified that he otherwise had “trust issues” with the new
owners.
Defendants relatedly assert that Labora and Greter were
not permitted to testify how their job duties had remained the
same despite their new corporate titles after the new owners
purchased Medipro. This assertion is contrary to the record
because both Labora and Greter were permitted to testify that
their job duties had not changed. Although the trial court did not
allow Labora to testify as to whether she was able to hire
Medipro employees, her answer was already before the jury:
27
Malcolm had testified that Labora could hire and fire employees
when he owned the company, and Labora testified her job duties
had not changed. Being denied the opportunity to elicit evidence
that is already before the jury is neither error nor prejudicial.
4. Refusal to allow testimony by defendants’
rebuttal expert witness
Defendants argue that the trial court erred in excluding
some testimony by their rebuttal expert witnesses on damages.
To support its claim for damages, Medipro called an
economist as an expert witness. The economist explained how he
calculated the profits Medipro lost by virtue of the migration of
most of Medipro’s nurses to Certified. He attributed all of that
migration to the defendants’ actions: Starting with the
stipulated fact that 40 nurses who had worked for Medipro and
not for Certified prior to Labora’s and Greter’s departure moved
to Certified after Labora and Greter departed, and relying on
other testimony that those were the “highest-producing” and
“most-respected nurses,” the economist opined that the departure
of those 40 nurses had a “snowball effect” that prompted many
other nurses to migrate and thus resulted in Medipro’s nurse
registry dropping from 155 nurses at the beginning of 2017 to 37
at the end of the year. To calculate Medipro’s past lost profits
from this loss of nurses, the economist estimated that Medipro’s
profits in 2017 and 2018 (up to the point of the trial in 2018) in
the absence of defendants’ misconduct would have been 10
percent less than they were in 2016, which the economist
explained was a “reasonable” and “conservative” estimate given
that Medipro had grown by 40 percent between 2015 and 2016.
To those expected profits, he compared Medipro’s actual losses in
2017 and 2018, and from that concluded that the sum of the lost
profits for those two years totaled $1,534,961. To calculate future
28
lost profits, the economist estimated that Medipro’s profits in
2019, 2020, 2021 and 2022 in the absence of defendants’
misconduct would have remained the same as the profits he
estimated in the absence of misconduct for 2017 and 2018 (that
is, at 10 percent below Medipro’s profits in 2016). He then
estimated what Medipro’s profits would be in light of defendants’
misconduct by starting with what its actual profit/loss was in
2018 and then calculating that Medipro’s profits in 2019, 2020,
2021, 2022 would, in actuality, grow by 12 percent each year from
what they were in the prior year, which the economist explained
was a “reasonable” and “conservative” estimate given that
Medipro’s profits had increased by 15 percent between 2017 and
2018. The economist stopped calculating future lost profits in
2022 because, by that time, Medipro’s actual future profits would
equal what he estimated they would have been in the absence of
misconduct. Discounted to present value, the future lost profits
came to $1,007,238.
Defendants introduced evidence to undermine the
economist’s analysis. Greter testified that the drop in Medipro’s
profits had started prior to his and Labora’s departure, and was
partly attributable to changes in the contracts with three of the
hospitals Medipro serviced. Defendants also called their own
economist, but solely as a rebuttal expert (because they had not
designated him as an expert prior to trial). Defendants’ expert
testified that Medipro’s economist overstated the lost profits
because, in his view, (1) Medipro’s nurse registry—and its
revenues—started to shrink before Labora and Greter left, (2)
there was no “snowball effect,” (3) Medipro’s economist was
wrong to assume Medipro’s profits in the absence of wrongdoing
would only be 10 percent less than 2016 because Medipro should
29
not have expected its business to continue at all after its at-will
employees departed, (4) Medipro’s economist was wrong to
calculate future profits out to 2022 because it was “too long of a
damages period,” (5) Medipro’s economist should have used a
methodology that the economist had revealed prior to trial but
did not rely on at trial, and (6) Medipro’s economist’s analysis
“did not line up with the facts” and “did not line up with the
methodologies” of his profession.
Despite all of this evidence introduced to call into question
the testimony of Medipro’s economist, defendants argue that the
trial court erred in not allowing their rebuttal expert to testify
about (1) the errors in the methodology the economist opted not
to rely upon, and (2) why the economist erred in not factoring in
the changes to Medipro’s contracts with its hospitals. Even if we
assume for the sake of argument that these rulings were error, it
is not reasonably probable that they would have affected the
outcome of the trial. The outcome of the trial could not be
affected by whether or why defendants’ expert disagreed with a
theory that Medipro’s economist never presented to the jury. And
it is not reasonably probable that the outcome of the trial was
affected by the absence of an explanation as to why Medipro’s
economist should have factored in possible changes to hospital
revenue: The economist testified on cross-examination that
Medipro’s revenue was driven chiefly by the number of available
nurses in its registry, and defendants’ expert testified to his belief
that this was wrong; the why of it was not critical, particularly
when this factor was only one of many factors on which the two
experts disagreed and the jury, by awarding actual damages in
the approximate amount calculated by Medipro’s economist,
30
necessarily credited the economist’s testimony over defendants’
expert’s testimony.
C. Instructional rulings
Defendants challenge two of the trial court’s rulings on jury
instructions. We review such challenges de novo. (Evans v. Hood
Corp. (2016) 5 Cal.App.5th 1022, 1045.)
1. Instruction regarding announcing new
employment
Defendants asked the trial court to instruct the jury that
“An employee has the right to announce their new employment to
clients on a protected trade secret customer list. Even if the
employee is under a duty to limit their use of trade secret
information, such a duty does not prohibit the employee from
sending announcements to clients.” (Italics added.) The trial
court instructed the jury with the non-italicized portion of the
instruction after finding the italicized portion to be “argument.”
We conclude the trial court’s ruling was not prejudicial
error. It was not error because the trial court properly instructed
the jury on the legal principle that former employees may
announce their new employment. (American Credit Indemnity
Co. v. Sacks (1989) 213 Cal.App.3d 622, 634, 636; Reeves, supra,33 Cal.4th at p. 1156.) But the court did not err in refusing to
instruct on the italicized portion because it was potentially
confusing (given that there was no trade secrets claim at issue
and given that it referred to “clients,” when the nurses on staffing
registries are not technically clients) and because it was
argumentative (given that it went beyond the legal principle to
frame an argument favorable to defendants). (People v. Moon
(2005) 37 Cal.4th 1, 30 (Moon) [court may decline an instruction
if it “incorrectly states the law, is argumentative, duplicative [of
other instructions], or potentially confusing”]; Major v. Western
31
Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217 [same].) Even
if error, the court’s instructional ruling was not prejudicial to the
breach of duty and fraud-based claims upon which we affirm
because, as explained above, they are based upon Labora and
Greter’s conduct while they were Medipro employees; as to these
claims, the instruction regarding what former employees may do
is irrelevant.
2. Instruction regarding at-will employment
Defendants asked the trial court to instruct the jury that
“[a] defendant is not liable for intentional interference if the
interference consists merely of extending a job offer that induces
an employee to terminate his or her at-will employment.” This
instruction pertains to Medipro’s claim against Sy and Certified
for intentionally interfering with the employment contracts
between Medipro and Labora and Greter; it has nothing to do
with the breach of duty, the fraud-related, or the aiding and
abetting a breach of duty claims upon which we affirm the verdict
in this case. As a result, any error is by definition not prejudicial
to our analysis. Declining to give the instruction was also not
error because the jury was already instructed, with respect to the
intentional interference count, that liability for intentional
interference turns on proof that Sy and Certified’s conduct
“prevented [Labora’s and Greter’s] performance [of their contract
with Medipro] or made performance more expensive or difficult,”
something a mere offer by Certified could not by itself establish.
What is more, the instruction defendants requested was not
supported by the evidence, which, as detailed above, showed that
Sy and Certified did far more than “merely . . . extend a job offer.”
(Moon, supra, 37 Cal.4th at p. 30 [instruction not warranted “if it
is not supported by substantial evidence”].)
32
* * *
For the first time in their reply brief, defendants argue that
(1) the cumulative effect of the above stated errors warrants
reversal, and (2) the trial court made “highly prejudicial”
remarks while making rulings in front of the jury. Both of these
arguments are forfeited because they were not raised in
defendants’ opening brief, at a time when Medipro would have
had an opportunity to respond to them. (People v. Tully (2012) 54
Cal.4th 952, 1075 [“It is axiomatic that arguments made for the
first time in a reply brief will not be entertained because of the
unfairness to the other party”].) These arguments lack merit in
any event. There is no cumulative error because, as explained
above, there are no individual errors to cumulate. And the
transcript, which we have read from cover to cover, reflects no
inappropriate commentary by the trial court.
DISPOSITION
The judgment is affirmed. Medipro is entitled to its costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
33