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APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person and Michael C. Solner, Judges. Affirmed. Simon & Simon, Jeffrey S. Simon and David A. Simon; Martin & McCormick and Kathy J. McCormick for Plaintiff and Appellant. Baer & Troff and Eric L. Troff; The Gansinger Firm and James M. Gansinger for Defendants and Respondents. Both appellant Contemporary Services Corporation (CSC) and respondent Staff Pro Security, Inc. (Staff Pro) provide security and event staffing services to arenas, stadiums, and similar venues in which concerts, athletic events, and trade shows are held. CSC sued Staff Pro and its President and Chief Executive Officer (CEO) Cory Meredith (collectively Staff Pro). In its first amended complaint, CSC alleged that Staff Pro, in violation of California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), committed various practices resulting in injury to CSC. CSC’s first cause of action alleged that Staff Pro engaged in below-cost pricing in violation of Business and Professions Code section 17043. CSC alleged that Staff Pro charged some of its clients rates substantially below Staff Pro’s actual costs, thereby precluding CSC from submitting competitive bids. The trial court granted Staff Pro’s motion to summarily adjudicate this cause of action in its favor and subsequently denied on the merits CSC’s motion to reconsider that ruling. CSC’s second cause of action alleged that Staff Pro engaged in unfair competition in violation of Business and Professions Code section 17200 by engaging in “ghost billing.” That is, CSC alleged that Staff Pro billed clients for services that were never rendered in order to make up for the financial shortfalls caused by its submission of below-cost bids. The trial court granted Staff Pro’s motion to dismiss this cause of action, finding that CSC lacked standing to pursue this claim because it had not suffered an “injury in fact” as required by Business and Professions Code section 17204. In this appeal, CSC primarily contends that the trial court’s grant of summary adjudication of its first cause of action and its dismissal of the second cause of action for lack of standing were erroneous. Secondarily, CSC attacks three discovery-related rulings made by the trial court. We are not persuaded by any of CSC’s arguments and therefore affirm the judgment. I. STAFF PRO’S MOTION FOR SUMMARY ADJUDICATION ON CSC’S FIRST CAUSE OF ACTION A. Factual and Procedural Background 1. Staff Pro’s Summary Adjudication Motion As stated in our introduction, CSC’s first cause of action was for below-cost pricing in violation of Business and Professions Code section 17043. That statute provides: “It is unlawful for any person engaged in business within this State to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition.”[1] (Italics added.) (Bus. & Prof. Code, § 17043.) Staff Pro moved for summary adjudication of the first cause of action. Staff Pro offered three declarations to establish that in calculating and submitting its bids, it did not act with the purpose to injure or destroy its competitors. One declaration was from CEO and President, Cory Meredith; the other two were from Staff Pro’s past and present Chief Financial Officers (CFO). The declarations explained the methodology Staff Pro used to calculate a bid. Meredith’s declaration explained, in pertinent part:[2] “3. Staff Pro’s ‘product’ is labor and the management of labor. Staff Pro’s business philosophy has always been to never bid for any staffing event below Staff Pro’s cost. Staff Pro has never bid for any contract with the intent to lose money. Nevertheless, it has happened that after a contract has been awarded to Staff Pro, over the life of the contract, Staff Pro may lose money if unforeseen events, such as a raise in the minimum wage, occur. Furthermore, Staff Pro has never bid a contract with the specific purpose of injuring CSC or any other competitor in the event staffing, security and audience management industry. . . . “5. It was never Staff Pro’s intent to bid a contract merely to get a job, whether or not Staff Pro could make a profit. Staff Pro never bid a contract with the knowledge that Staff Pro would not make a profit or that Staff Pro’s bid would be below its cost. . . . “10. The prices at which Staff Pro priced its services at Irvine Meadows (now Verizon Amphitheatre) and Glen Helen Blockbuster Pavilion (now Hyundai Pavilion) in 1997, 1998, 1999 and 2000 were set because I was aware of the price levels at which many of Staff Pro’s competitors were offering their services in Southern California. Staff Pro’s prices at these venues were offered at levels that I believed were competitive with the prices being offered by Staff Pro’s competitors in the Southern California market in each of these years. “11. As President of Staff Pro it was important to me to attempt to maintain and, if possible, to increase Staff Pro’s market share in the event staffing and security business in Southern California. In order to maintain, and hopefully increase, Staff Pro’s market share, it was necessary, in my business judgment, to price Staff Pro’s services at price levels that were competitive, i.e. that met, the prices offered by Staff Pro’s competitors.” (Italics added.) Meredith explained that the declarations from Staff Pro’s two CFOs accurately set forth Staff Pro’s procedure for calculating its bids and that he had worked with them to develop and implement that bidding methodology. According to Meredith, that “methodology has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” Wayne Neumann had been Staff Pro’s CFO from 1994 to 1999. He explained: “5. In order to attempt to assure profitable contracts, the methodology that [Meredith and I] developed involved first determining the direct pay rate that we were paying to our employees who would be providing the services to our customers. I then calculated the ‘burden’ to add to this direct labor cost. Burden includes employer payroll taxes, unemployment compensation insurance and workers compensation insurance. The third step was to add a gross profit component of 25-30% on top of the direct labor cost. “6. The 25-30% gross profit component was designed by us to include the cost of all administrative costs such as staff salaries, rent and other overhead costs, as well as non-operating costs such as depreciation and amortization. Roughly speaking, this 25-30% gross profit component included an overhead component of 8-10%, an administrative component of 8-10% and an expected profit component of 8-10%. “7. It was my opinion that the 25-30% gross profit figure was adequate to cover all costs and result in a reasonable profit to the company based upon my many years of experience as a Chief Financial Officer and by my in depth knowledge of the actual operating and overhead experiences of Staff Pro. I had performed a number of cost analyses of a number of Staff Pro’s contracts and was confident that the bidding methodology that we developed would provide for profitable operations.” Edward Masotti served as Staff Pro’s CFO from 1999 to February 2005. Masotti’s detailed explanation of Staff Pro’s bidding methodology paralleled that given by Neumann. Masotti averred: “I have performed several cost analyses on a number of Staff Pro’s contracts and I am confident that the bidding methodology that was developed [by Neumann], for profitable operations.” (Italics added.) In addition, Masotti’s declaration included two charts to establish that Staff Pro did not engage in below-cost bidding. The first chart set forth Staff Pro’s bids for nine events conducted from 2001 through 2003 and the bids submitted by two competitors for the same events. The chart indicated that Staff Pro’s bids were the same as or higher than the competitors’ bids. The second chart, based upon invoices, set forth Staff Pro’s rate for contract labor at two venues for a five-year period (1997-2001) as compared to two competitors’ rates for the same time frame. In each instance, Staff Pro’s rate was the same as or greater than that charged by its competition. 2. CSC’s Opposition to the Summary Adjudication Motion CSC’s opposition to the summary adjudication motion offered deposition testimony and declarations to counter Staff Pro’s evidentiary showing that Staff Pro did not submit below-cost bids. Although the trial court sustained Staff Pro’s objections to the bulk of this evidence, CSC’s appeal challenges only one of those evidentiary rulings: the striking of three paragraphs from the declaration of CSC’s vice-president James Granger. We will set forth that specific evidence later when we address CSC’s claim that the evidentiary ruling was an abuse of discretion. Other than that, we will not detail the particulars of CSC’s stricken evidence. “[Because] the trial court sustained defendants’ evidentiary objections to those items, and [CSC] does not challenge those evidentiary rulings on appeal[,] [w]e therefore presume that those evidentiary rulings were correct [citation], and we disregard those excluded items.” (Stockinger v. Feather River 1022.) And to the extent CSC argues a triable issue of fact was created either by its non-stricken evidence or evidence proffered by Staff Pro, we will set forth that evidence when we discuss whether the trial court properly summarily adjudicated the first cause of action in Staff Pro’s favor. CSC also filed a 572-page Separate Statement of Highly Confidential Facts to oppose Staff Pro’s summary adjudication motion.[3] The document was filed under seal pursuant to a Protective Order and Confidentiality Stipulation executed by the parties and signed by the trial court. CSC urges that information in this particular document establishes that a triable issue of material fact exists. We conclude that the argument has been forfeited by CSC’s deficient presentation first in the trial court and later in this appeal. 3. The Trial Court’s Tentative Ruling and the Hearing on the Motion In its tentative ruling, the trial court indicated that it would deny Staff Pro’s motion for summary adjudication based upon Code of Civil Procedure section 437c, subdivision (e) (hereafter subdivision (e)).[4] In pertinent part, subdivision (e) provides: “[S]ummary judgment may be denied in the discretion of the court . . . where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” The trial court’s tentative ruling was based upon its mistaken belief that the only evidence that Staff Pro had offered to establish that it did not act with the purpose to injure or destroy its competitors was the declaration from Meredith, its CEO and President. At the hearing on the motion, Staff Pro corrected the trial court’s mis-perception. Staff Pro’s counsel explained that Meredith’s declaration was not the sole evidentiary basis of its motion because it was also relying upon the declarations of CFOs Masotti and Neumann. Since neither party had addressed subdivision (e)’s potential application, the trial court permitted the parties to file additional briefing on this question. In addition, the trial court ruled upon the parties’ evidentiary objections. 4. The Trial Court Grants Summary Adjudication to Staff Pro After the parties submitted additional briefs, the court granted summary adjudication to Staff Pro. Its minute order explains: “The Court has ruled separately on the parties’ evidentiary objections. The Court did not consider any evidence to which an objection was sustained. “Staff Pro . . . contends that CSC cannot establish that Staff Pro acted with the purpose of injuring competitors or destroying competition. Even assuming that Staff Pro sold its services below cost - whether it did so is a question of fact, [citation] - CSC must prove that it [Staff Pro] did so with the express purpose of damaging or destroying competition. [Citation.] “Cory Meredith has stated in his declaration that Staff Pro didn’t intend to injure competition. The company has no policy of pricing below cost, and does not intend to destroy CSC. Previously, the Court tentatively denied the motion . . . pursuant to CCP Section 437c(e)[.] . . . The tentative ruling denying the motion invoked this rule, noting that the only evidence of Staff Pro’s ‘intent’ in regards to pricing was from Cory Meredith, CEO of Staff Pro. “The parties were permitted to submit further briefing on this issue, and this issue alone. . . . “CCP Section 437c(e) allows the court to deny a motion for summary judgment where the only proof of a material fact is made by an INDIVIDUAL who was the sole witness to the fact, or where the fact is an INDIVIDUAL’S state of mind, and the fact is sought to be established by the INDIVIDUAL’S affirmation thereof. As Staff Pro convincingly argues, the issue in the present motion is not an individual’s state of mind, but rather Staff Pro’s ‘intent’ with regards to any below cost pricing. Thus, while CCP Section 437c(e) would apply if Cory Meredith’s state of mind or intent were at issue, it does not apply because no one individual’s intent is at issue. “ Financial Officers (Wayne Neumann and Edward Masotti) have described Staff Pro’s pricing methodology, which was designed and intended to provide for the company’s profitable operation. Its bids have included a 25-30% gross profit figure, which it has found adequate to cover costs and result in a profit to the company. CSC has submitted no evidence to the contrary. Therefore, Staff Pro is entitled to summary adjudication of the first cause of action on this basis.”[5] (Capitalization in original, italics and boldface added.) CSC subsequently filed a motion for reconsideration which the trial court denied. We will set forth the specifics of the motion and the trial court’s ruling later in this opinion when we discuss CSC’s contention that the trial court erred in denying the reconsideration motion. Granted Summary Adjudication to Staff Pro In this appeal, CSC improperly conflates procedural, evidentiary and substantive arguments into an overall attack on the trial court’s decision to grant Staff Pro’s summary adjudication motion. In addition, CSC improperly includes facts from its motion for reconsideration to argue that the trial court erred in granting summary adjudication. For clarity of analysis, we address separately each of CSC’s arguments. First, we discuss CSC’s contentions that the trial court abused its discretion in (1) overruling CSC’s objections to Staff Pro’s evidence and (2) sustaining Staff Pro’s objections to CSC’s evidence. Second, we discuss CSC’s claim that in granting the summary adjudication motion, the trial court improperly relied upon evidence it had stricken. Third, we discuss whether subdivision (e) applies to this case. Fourth, we consider CSC’s procedural argument that the trial court improperly relied upon evidence not identified in Staff Pro’s Separate Statement of Undisputed Facts (SSUF) when it granted summary adjudication to Staff Pro. After rejecting all of those claims of error, we conclude that based upon the evidence presented, the trial court properly granted summary adjudication.[6] In a separate portion of this opinion, we address CSC’s motion for reconsideration. 1. In Overruling CSC’s Objections CSC urges that the trial court abused its discretion in overruling its objections to paragraph three of Meredith’s declaration. As set forth earlier, that paragraph averred: “3. Staff Pro’s ‘product’ is labor and the management of labor. Staff Pro’s business philosophy has always been to never bid for any staffing event below Staff Pro’s cost. Staff Pro has never bid for any contract with the intent to lose money. Nevertheless, it has happened that after a contract has been awarded to Staff Pro, over the life of the contract, Staff Pro may lose money if unforeseen events, such as a raise in the minimum wage, occur. Furthermore, Staff Pro has never bid a contract with the specific purpose of injuring CSC or any other competitor in the event staffing, security and audience management industry.” (Italics added.) CSC objected: “The statement lacks foundation, mis-characterizes testimony, and is an improper opinion.” In this appeal, CSC contends that the italicized statements in paragraph three constitute “impermissible opinion.” CSC argues that the declaration shows that Meredith “had no involvement in bidding and had no knowledge of whether or not the methodology created by Messrs. Neumann and Masotti was actually used in preparing bids. There was simply no foundation set forth in Mr. Meredith’s Declaration for the statements made with regard to Staff Pro never billing below cost and it was an abuse of discretion to permit the introduction [of] and [to] rely on such objectionable statements.” CSC’s arguments are not persuasive. CSC overlooks material portions of Meredith’s declaration, portions to which CSC posed no objections. Meredith averred that he had been Staff Pro’s President and CEO since the company had been founded. Meredith explained that in that capacity, he had worked with both Neumann and Masotti “in developing and implementing the bidding methodology described in their Declarations”; that those two declarations “accurately described” “Staff Pro’s procedure for calculating its bids”; and that “[t]his methodology has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” These averments established Meredith’s personal knowledge of the methodology of Staff Pro’s bidding process and its use (past and present). The trial court therefore did not abuse its discretion in overruling CSC’s objections to paragraph three of Meredith’s declaration. (See Tri-Q, Inc. v. Sta-Hi Corp. (1965) 63 Cal.2d 199, 208 [testimony of both defendant’s president and its chief executive officer was sufficient to support the finding that the defendant did not set a low price for its product with the intent to injure or harm competitors].) 2. The Trial Court Did Not Abuse Its Discretion In Sustaining Staff Pro’s Objections to Granger’s Declaration CSC urges that the trial court abused its discretion in sustaining Staff Pro’s objections to portions of the declaration of Granger, CSC’s vice-president. CSC argues that the ruling constitutes prejudicial error because the stricken evidence created a triable issue of material fact.[7] We are not persuaded that the contested ruling was an abuse of discretion. By way of background, Granger first explained: “I was hired to work for Event Management Services by Defendant Cory Meredith when he started the company in about 1984. Event Management Services changed its name to Staff Pro in 1987. I left employment with Staff Pro sometime in the summer of 1988. I worked under . . . Meredith for almost four (4) years at Staff Pro and had many discussions and conversations with [him] about his business ‘philosophies’ and practices.” The trial court sustained Staff Pro’s objections to the following three paragraphs of Granger’s declaration in which he recounted in general terms conversations he allegedly had with Meredith. “4. I have read the Declaration of Cory Meredith attached in support of Defendants’ Motion for Summary Adjudication wherein he states that the business ‘philosophy’ of Staff Pro had ‘always been to never bid for any staffing event below Staff Pro’s costs.’ Additionally, Cory Meredith states that Staff Pro ‘has never bid a contract with the specific purpose of injuring CSC or any other competitor.’ When I was employed with Staff Pro, Cory Meredith admitted just the exact opposite in conversations which I had with him. Cory Meredith admitted to me in conversations that Staff Pro purposefully bid lower rates, and needed to ‘ghost bill’ to cover the costs associated with the lower rates. Cory Meredith commented to me that in order to get jobs Staff Pro would purposefully ‘come in low,’ ‘to give the customer a reason to use Staff Pro,’ and then over bill or ‘ghost bill’ for people who did not actually work. This was Staff Pro and Cory Meredith’s business ‘philosophy.’ Cory Meredith commented to me that the low rates resulted in what amounts to an operating loss, but ‘ghost billing’ took care of it. Cory Meredith stated to me that Staff Pro essentially did business[ ] this way, bidding well below its competitors to get the business, and then ‘ghost billing’ the clients to make up the difference. This was a common practice, policy and/or procedure for Staff Pro and Cory Meredith. “5. When I worked at Staff Pro, I was specifically directed by Cory Meredith, himself, to sign people on time sheets that did not work at events. wherein he told me that it was common practice at Staff Pro to prepare the invoices to the clients with the extra people who did not work being billed to the client – ‘ghost billing.’ Cory Meredith explained and admitted to me that he knew of and was involved in the ‘ghost billing’ and that the reason for such ‘ghost billing’ was to make up for Staff Pro’s low rates or the rates that Staff Pro charged its customers. I understood from the directives of Cory Meredith that he was directing me to keep the client from knowing that Staff Pro had less people than were supposed to work and then what the client was charged. One time, I asked Cory Meredith what was in it for me to do this since the customer trusted me, to which Cory Meredith responded essentially that my employment depended on it. “6. In my conversations with Cory Meredith, I would ask the question, ‘what do you do with the extra money,’ and he told me it was paying for insurance and other expenses Staff Pro has since it did not have a good rate from the Universal Amphitheater, and this ‘ghost billing’ made up for the rate. Essentially, Cory Meredith admitted and told me that since Staff Pro was charging such low rates, it had to make money by ‘ghost billing.’ This was Staff Pro’s business model.” (Italics added.) Staff Pro raised multiple objections to the preceding three paragraphs. These included that Granger’s declaration described conversations which had occurred long before the events giving rise to the lawsuit and that Granger’s averments failed to identify with particularity what Meredith “specifically said in the purported conversations, when the conversations took place, where they took place and who was present during these conversations.” The trial court sustained Staff Pro’s objections and struck paragraphs 4 through 6 in their entirety.[8] As CSC concedes, we review a trial court’s ruling on evidentiary objections in summary adjudication litigation for an abuse of discretion. ( Cal.App.4th 688, 694.) Abuse of discretion means that the ruling “exceeds the bounds of reason, all of the circumstances before it being considered.” (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498.) Here, we find no abuse of discretion. In his declaration, Granger averred that he had worked for Meredith from 1984-1988. Granger purported to describe conversations he had had with Meredith about Meredith’s business philosophy and Staff Pro’s practices during that time period. These conversations, however, lacked temporal proximity to the events alleged in CSC’s lawsuit. CSC filed its action in 2001; its cause of action for below-cost pricing has a four-year statute of limitations (Bus. & Prof. Code, § 17208). Thus, the lawsuit, at most, put in issue events occurring from 1997 to 2001. But Granger’s declaration referenced, in the most general manner, conversations that allegedly occurred in 1984-1988, 9-13 years before the events underlying CSC’s lawsuit. Further, Granger’s conversations with Meredith occurred long before Meredith, working with Neumann (Staff Pro’s CFO from 1994 to 1999), developed the methodology Staff Pro uses to formulate its bids. Masotti, Staff Pro’s CFO from 1999 to 2005, continued to use this methodology. Staff Pro relied upon the evidence of its creation and use of this methodology—a methodology designed to yield profitable contracts—in its summary adjudication motion to establish that it did not submit below-cost bids. Granger’s averments did not address the time period raised by the lawsuit (1997 through 2001) but, instead, addressed a much earlier period (1984-1988). In light of this deficiency, the trial court could reasonably conclude that Granger’s declaration was not relevant evidence about the methodology Staff Pro used to calculate bids during the period covered by the lawsuit. Because the declaration lacked probative value on the issues raised by CSC’s lawsuit, the trial court did not abuse its discretion in sustaining Staff Pro’s objections to paragraphs 4 through 6 of Granger’s declaration. 3. Evidence in Granting Summary CSC argues that “it [is] indisputable that the Trial Court improperly relied on evidence that it found to be inadmissible in granting the Motion for Summary Adjudication.” That is, CSC claims that although the trial court sustained CSC’s objections to paragraph seven of Masotti’s declaration and paragraph eight of Neumann’s declaration, it, nonetheless, relied on those stricken paragraphs to grant summary adjudication to Staff Pro.[9] The record directly refutes this misleading argument. At the hearing on the summary adjudication motion, the trial court sustained CSC’s objections to the portions of the declarations CSC now claims the trial court relied upon. Further, the trial court’s minute order granting the summary adjudication motion (set forth above) recites: “The Court has ruled separately on the parties’ evidentiary objections. which an objection was sustained.” (Italics added.) We must presume that the trial court complied with its own evidentiary rulings. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”]; ABF Capital Corp. v. Grove Properties Co. (2005) 126 Cal.App.4th 204, 213.) Nonetheless, CSC argues that the record is susceptible of only one reasonable conclusion: the trial court must have considered the two stricken paragraphs because this was the only evidence “that addressed purpose or intent” and therefore supported the grant of summary adjudication. Not so. As we will explain in great detail below, the admissible evidence offered by Staff Pro in the declarations of Meredith, Masotti and Neumann supports the grant of summary of adjudication on the first cause of action. 4. Action To recapitulate, subdivision (e) provides: “[S]ummary judgment court . . . where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (§ 437c, subd. (e).) (Italics added.) Although the trial court initially believed this provision was potentially relevant to Staff Pro’s motion, it ultimately concluded that it was not. CSC urges that decision was error, contending that “the Meredith Declaration was the only Declaration setting forth Staff Pro’s ‘intent’ [so that the case] falls squarely within Section 437c(e), and the Motion should have been denied.” We disagree for several independent reasons. First, CSC mischaracterizes the statute. The statute does state of mind is a material issue and only one declaration about state of mind is tendered to support a motion for summary adjudication or judgment. Instead, the statute gives the trial court the discretion to deny the motion even though no evidence is presented to contradict that one declaration. Thus, even were we to conclude that the statute applies (a conclusion we do not reach for the reasons explained below), the real issue would be whether the trial court abused its discretion in granting Staff Pro’s summary adjudication motion.[10] Second, the statutory language limits its application to a case in which “an individual’s state of mind, or lack thereof” is a material fact and a party seeks to establish that fact solely through a declaration from the individual. (§ 437c, subd. (e), italics added.) But this case does not involve the state of mind of an individual. Instead, it involves whether a corporation (Staff Pro) acted with the purpose of injuring or destroying its competitors. While a corporation is considered a “person” within the meaning of the state and federal constitutions (9 Witkin, Summary of Cal. Law (10th ed. 2005) Corporations, § 1, p. 775), it is not an “individual” with a state of mind. A corporation acts through its directors, officers and managing agents. (See Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167-168.) Consequently, a corporation’s purpose is established through the collective state of mind of those individuals because they determine and implement corporate policy. Thus, while the existence or non-existence of a corporate purpose can be established through declarations from those individuals, those declarations do not, within the meaning of subdivision (e), put the individual declarant’s state of mind in issue. Had the Legislature intended subdivision (e) to apply when the disputed issue was corporate purpose or state of mind, it could have used the word “person” instead of “individual” in the statutory language because “the word ‘person’ [in the Code of Civil Procedure] includes a corporation as well as a natural person.” (§ 17, subd. (a).) Lastly, the predicate of the statute—reliance upon one declaration to establish state of mind—is not present in this case. Staff Pro did not rely solely upon the Meredith declaration to establish its corporate purpose. It also submitted declarations from Neumann and Masotti on that specific issue. The trial court relied upon all three declarations to find that Staff Pro had discharged its burden to establish that it did not set the price of its contracts with the purpose of injuring or destroying competitors. In sum, subdivision (e) does not apply to this case. CSC therefore cannot rely upon it to seek reversal. 5. When It Relied Upon Evidence Statement of Undisputed Facts to CSC urges that the trial court was precluded from relying upon the non-stricken portions of the Masotti and Neumann declarations to grant summary adjudication because Staff Pro did not identify that specific evidence in its SSUF. CSC’s claim is based upon the following. Staff Pro’s summary adjudication motion included the Masotti and Neumann declarations. Staff Pro’s Undisputed Facts Nos. 6 through 11 addressed Staff Pro’s contention that it did not act with the purpose of destroying or injuring competition. To support those undisputed facts, Staff Pro relied upon Meredith’s declaration (the relevant text of which has been set forth earlier) and the two paragraphs from the Masotti and Neumann declarations that the trial court later struck. (See fn. 9, ante.) The SSUF did not identify the paragraphs of the Masotti and Neumann declarations describing Staff Pro’s pricing methodology that the trial court later relied upon in granting summary adjudication. According to CSC, the omission of those paragraphs from the SSUF precluded the trial court from relying upon them in rendering its ruling. On the facts of this case, we are not persuaded. “Whether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court.” ( Bank (2002) 102 Cal.App.4th 308, 316.) In exercising that discretion, the trial court should consider, among other things, the due process right of the opposing party (here, CSC) to be adequately informed of the evidence the moving party (here, Staff Pro) intends to rely upon to secure summary adjudication. (Ibid.) As we now explain with a detailed chronology of the summary adjudication litigation, the trial court’s consideration of the evidence not referenced in Staff Pro’s SSUF did not violate CSC’s due process rights. We therefore find that the trial court did not abuse its discretion in considering that evidence. Staff Pro filed its summary adjudication motion in February 2005. Although the SSUF did not refer to all of the paragraphs in the Masotti and Neumann declarations, the motion did explain, inter alia, that Masotti’s declaration “demonstrate[s] that the method by which Staff Pro bids on contracts was always designed to generate a profit, after taking all of the company’s costs of operating and overhead into account.” CSC filed its opposition to summary adjudication in June 2005. CSC set forth what it believed to be evidence to contradict Staff Pro’s evidentiary showing (set forth in Facts Nos. 6 through 11 of Staff Pro’s SSUF) that it did not act with the purpose of injuring or destroying competition. Before the trial court conducted a hearing in June 2005 on the summary adjudication motion, it posted its tentative ruling. As previously discussed, that ruling indicated that the court believed that the only evidence offered by Staff Pro about whether it acted with the purpose of injuring or destroying competition was Meredith’s declaration and, as a result, the court had the discretion under subdivision (e) to deny the motion and had tentatively decided to exercise its discretion to deny the motion. At the hearing, Staff Pro’s attorney responded to the tentative ruling. He pointed out that Staff Pro had produced other evidence (the Neumann and Masotti declarations) to establish proper purpose and asked the trial court to consider that evidence in ruling upon its motion.[11] CSC’s attorney did not directly respond to that point. In particular, he did not urge that it was improper for Staff Pro to rely upon the Neumann and Masotti declarations because Staff Pro had not cited them in the SSUF. Instead, he simply argued that a triable issue of material fact existed. After counsel completed argument, the court took the matter under submission. Thereafter, Staff Pro requested leave to file a supplemental brief to address the applicability of subdivision (e). The trial court granted the request and allowed CSC to file a reply to Staff Pro’s supplemental brief. Staff Pro’s supplemental brief argued, among other points, that subdivision (e) did not apply because it had offered declarations from three individuals (Meredith, Neumann, and Masotti) on the issue of purpose. CSC’s reply brief never argued that the trial court could not consider the Neumann and Masotti declarations. Instead, CSC claimed that the two declarations did “not directly relate to the issue of ‘purpose’ at all, and, at best, can only be said to inferentially relate to this issue.” On that basis, CSC requested denial of Staff Pro’s summary adjudication motion. No further hearing was conducted on the summary adjudication motion. After considering the supplemental briefs, the trial court filed a minute order granting Staff Pro summary adjudication on the first cause of action. The minute order, set forth earlier, explained that the court was relying upon the three declarations tendered by Staff Pro. In light of the above chronology, we conclude that the trial court did not abuse its discretion in considering the portions of the Neumann and Masotti declarations not referenced in Staff Pro’s SSUF. Once the trial court on its own motion raised subdivision (e) in its tentative ruling, Staff Pro, at the June 2005 hearing, pointed out the significance of the two declarations. CSC did not object on procedural grounds to Staff Pro’s reliance upon those two declarations. In its supplemental brief filed after the hearing, Staff Pro again relied upon the two declarations. CSC’s reply did not claim that it was improper or unfair for Staff Pro to cite those two declarations. Instead, CSC argued on the merits against the evidentiary significance of the declarations. Clearly, CSC had both notice that Staff Pro intended to rely upon the declarations and ample opportunity to argue that the declarations did not establish what Staff Pro claimed they did. CSC never objected to Staff Pro’s reliance upon them because they were not cited in the SSUF. This failure to object constitutes a forfeiture of CSC’s right to raise this claim on appeal. In any event, “[w]e conclude the trial court did not abuse its discretion by considering evidence of which [CSC] was well aware and which [it] had ample opportunity to debunk. This is not a case . . . where the plaintiff was sabotaged by the sneaky introduction of new evidence for the first time in the defendant’s reply. [Citation.] Rather, [Staff Pro] submitted declarations by those who [developed and used Staff Pro’s bidding methodology] as evidence [that Staff Pro did not act with the purpose of injuring or destroying competitors in submitting bids for jobs.] We cannot say the trial court abused its discretion by considering the evidence material to the single, dispositive issue.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 438.) 6. Adjudication to Staff Pro on CSC’s In moving for summary adjudication, a defendant has “the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established.’” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; see also § 437c, subd. (o)(1).) Once this burden is met, the burden shifts to the plaintiff to prove the existence of a triable issue of material fact. If the plaintiff cannot meet its burden, the defendant is entitled to summary adjudication of the cause of action. (Id. at pp. 849-850.) We review de novo the trial court’s grant of summary adjudication. (Dunn v. CSC’s first cause of action alleged below-cost bidding on contracts in violation of Business and Professions Code section 17043. “[T]o violate section 17043, a company must act with the purpose, i.e., the desire, of injuring competitors or destroying competition.” ( Cellular Telephone Co. (1999) 20 Cal.4th 163, 174-175; see also CACI No. 3301.) The crux of Staff Pro’s summary adjudication motion was that it had established that a critical element of CSC’s cause of action could not be met: wrongful purpose. In that regard, Staff Pro offered evidence that in bidding for contracts, it did not act with the purpose of injuring or destroying competitors such as CSC. Staff Pro proffered a declaration from Neumann who, in his capacity as Staff Pro’s first CFO and along with Staff Pro’s President and CEO Meredith, had developed its bidding methodology. In addition to explaining the details of a bid computation, Neumann explained that the methodology was designed to ensure that the contract yielded a reasonable profit for Staff Pro. A declaration from Masotti, Staff Pro’s CFO at the time of litigation, averred that Staff Pro continued to use the bidding methodology developed by Neumann. Masotti also gave specific examples of Staff Pro’s submission of bids equal to or higher than those submitted by competitors to show that Staff Pro did not submit below-cost bids. Lastly, Meredith’s declaration averred that the Neumann and Masotti declarations accurately set forth Staff Pro’s bidding methodology and that the methodology had been and still was the process by which Staff Pro computed its bids. Because this evidence demonstrated that Staff Pro’s bids were based upon a pricing methodology designed to generate a profit, Staff Pro necessarily established that it was not submitting below-cost bids. In addition, Meredith explained that Staff Pro never bid on a contract with the intent to lose money; never bid on a contract knowing that it would not make a profit; and never bid with the purpose of injuring any competitor (including CSC). Taken together, this evidence met Staff Pro’s burden to establish that CSC could not prove an essential element of its cause of action for below-cost bidding. The burden therefore shifted to CSC to prove a triable issue of material fact existed. CSC failed to meet that burden.[12] CSC’s contrary arguments are not persuasive. CSC first urges that Staff Pro did not establish that it did not bid with the purpose to injure or destroy competition. CSC argues that the Neumann and Masotti declarations were insufficient evidence because neither man indicated “that he had any personal knowledge that the pricing methodology . . . was actually followed by Staff Pro when actual bids were made.” This argument misses the mark. Meredith explicitly averred that the methodology described by Neumann and Masotti “has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” Meredith was qualified to make this representation because, as Staff Pro’s President and CEO, he had worked with Neumann to develop the methodology. In addition, Masotti averred that he had “performed several cost analyses on a number of Staff Pro’s contracts and I am confident that the bidding methodology that was developed, and which I continue to use, provides for profitable operations.” (Italics added.) The trial court could reasonably infer from this representation that the pricing methodology described in Masotti’s declaration was, in fact, used to calculate bids for submission because profitable contracts are founded upon successful bids. We therefore conclude that Staff Pro presented evidence that in calculating bids it followed the pricing methodology initially developed by Meredith and Neumann and continued in use by Masotti. CSC next urges that Staff Pro failed to meet its burden of persuasion because Staff Pro’s own discovery responses revealed that Staff Pro “had no clue whether the methodology was always used in preparing bids.” The only evidence cited to support this proposition is a fragment of Masotti’s deposition testimony. CSC takes the testimony out of context. In the small portion of the deposition testimony furnished by CSC (only 4 pages), Masotti was questioned whether Staff Pro submitted a response to every bid request it received and whether it ever submitted bids without being formally requested to do so. Counsel asked Masotti: “Would the number of bids that Staff Pro submits be roughly the same as the number of requests for proposal that Staff Pro receives” Masotti replied: “There does not necessarily have to be a correlation of that, because we could bid a job without getting a request for proposal because they don’t have requests for proposal, formal requests for proposal.” The following colloquy then occurred: “Q Let me ask it this way. Going back to March 29, 1997, can you estimate the number of bids that Staff Pro has submitted to various facilities “A I couldn’t estimate that, no. “Q Say in the past year “A No. “Q Would it be more than ten “A Again, I would not have any idea because, necessarily – I don’t necessarily get involved in them.” (Italics added.) CSC argues that Masotti’s italicized comment establishes, or, at least, suggests, that he (or Staff Pro) did not know whether the pricing methodology was used to formulate bids. We disagree. Masotti simply indicated that he did not know how many bids Staff Pro had submitted because he was not “necessarily” involved in calculating each and every bid. Because Masotti’s declaration did not include any averment that he was personally involved in formulating conflicts with his declaration. Further, nothing in Masotti’s deposition testimony contradicts Meredith’s unequivocal assertion that the methodology “has been, and continues to be, the basis for how Staff Pro bids for all of its contracts.” CSC’s argument that “the evidence showed that such methodology was not followed, let alone always followed” is based upon speculation and conjecture and therefore is insufficient to demonstrate the existence of a triable issue of material fact. “When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.” (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.) CSC next claims that evidence contained in its Separate Statement of Highly Confidential Facts created a triable issue of material fact. Because much of that evidence consisted of Staff Pro documents that CSC obtained during discovery, CSC claims that “Staff Pro’s own documents [detail] below cost sales and admissions of intent to sell below cost.” In addition, CSC argues that the declarations of David Simon (CSC’s attorney) and Jack Zuckerman (a forensic accountant retained by CSC) offered as part of its Separate Statement of Highly Confidential Facts contradict the Meredith, Neumann and Masotti declarations. CSC’s arguments have been forfeited for two separate reasons. The first reason is that CSC has failed to comply with California Rules of Court, rule 8.204(a)(1)(C) which requires a party to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” CSC has merely cited to its Separate Statement of Highly Confidential Facts but has failed to identify where in those 572 pages the Simon and Zuckerman declarations and the Staff Pro documents it claims establish that Staff Pro submitted below-cost bids appear. “The separate statement is not itself evidence of anything. It is mere assertion. The evidence of the asserted facts appears elsewhere[.] [CSC’s] brief should have cited to those pages in addition to the separate statement of disputed facts.” (Stockinger v. Feather River Community College, supra, 111 Cal.App.4th at pp. 1024-1025.) CSC’s failure to do so constitutes a forfeiture of its claim that the declarations or the Staff Pro documents created a triable issue of material fact. This is because our obligation to conduct a “de novo review [of the trial court’s grant of summary adjudication] does not obligate us to cull the record for the benefit of the appellant [here, CSC] in order to attempt to uncover requisite triable issues. . . . [R]eview is limited to issues which have been adequately raised and briefed.” ( In any event, we believe we have located the two declarations referred to by CSC. Simon’s declaration simply purports to authenticate more than 30 documents attached to CSC’s motion. Zuckerman’s declaration primarily averred that, in his opinion, Staff Pro engaged in ghost billing. In that context, Zuckerman also opined that “Staff Pro engages in sales of its event staffing services at rates below its costs.” However, Zuckerman’s opinion on that issue was based largely upon stricken evidence and therefore does not establish a triable issue of material fact.[13] The second reason that the argument is forfeited is that to the extent CSC relies upon the Zuckerman declaration, CSC’s Separate Statement of Undisputed Facts (SSUF) never directed the trial court to that particular declaration notwithstanding CSC’s specific citation to other evidence found in its Separate Statement of Highly Confidential Facts. “In opposing a defendant’s motion for summary judgment, the plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. [Citations.] Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts. [Citation.] When a fact upon which plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court; the court does not have the burden to conduct a search for facts that counsel failed to bring out. [Citation.]” ( Cal.App.4th at p. 116, italics added.) The fact that CSC’s memorandum opposing Staff Pro’s motion referenced Zuckerman’s declaration does not change this conclusion. As we explained in Blackman v. Burrows (1987) 193 Cal.App.3d 889, “[i]t is no answer to say that the facts in [the plaintiff’s] memorandum of points and authorities filed in opposition to the motion constituted compliance with the separate statement requirement. Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.” (Id. at p. 894; see also Cal. Rules of Court, rule 3.1350(h) [setting forth precise format for an opposing separate statement].) Because CSC’s SSUF did not direct the trial court’s attention to Zuckerman’s declaration, CSC cannot rely upon that declaration to argue that the trial court erred in concluding that CSC had failed to meet its burden to establish the existence of a triable issue of fact.[14] (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31.) C. The Trial Court Properly Denied CSC’s Motion for Reconsideration of Its Grant of Staff Pro’s Motion for Summary Adjudication 1. CSC’s Motion for Reconsideration CSC filed a timely motion for reconsideration of the grant of summary adjudication in favor of Staff Pro |
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