Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV463671.
RIVERA, J.
Following a nonjury trial, the trial court held that insurance broker Frederic Holbrook (Holbrook) did not breach his employment contract with his former employer, Andreini & Company (Andreini), or otherwise misappropriate Andreini’s trade secrets when he brought a list of clients with him to his new employer, MacCorkle Insurance Services, Inc. (MacCorkle), because Holbrook owned the contested client information. Nevertheless, the trial court concluded MacCorkle and its chief executive officer Bernard Lauper (Lauper) were liable for misappropriating Andreini’s trade secrets. All parties have appealed. We reverse in part and affirm in part.
We collectively refer to MacCorkle, Lauper, and Holbrook as “defendants.” Where appropriate, we will refer to defendants individually for purposes of clarity.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Holbrook’s Employment with Andreini
In 1990, Holbrook went to work for Andreini as an insurance agent or “producer” broker. At that time, he signed a document entitled “Trade Secret Covenant, ” which prohibited Holbrook from accepting and soliciting any Andreini clients for two and a half years following his termination of employment. Inasmuch as Holbrook was bringing clients with whom he had existing relationships (i.e., a book of business), Andreini and Holbrook entered into an additional agreement that excluded or “carved out” those clients (1990 carve out agreement). The carve out agreement specifically allowed Holbrook to take the exempt clients with him to a “new employer.”
In 2003, while still employed by Andreini, Holbrook signed a new document entitled “Producer Employment Contract, ” which included a clause prohibiting Holbrook from soliciting specific types of accounts for two years after leaving Andreini. This agreement superseded the 1990 “Trade Secret Covenant.” The operative agreement reiterated that the clients on the carve out list “were customers of [Holbrook] prior to joining [Andreini]” and they were to “remain the property of [Holbrook], ” who had “the right to transfer such accounts from [Andreini]” (2003 carve out agreement).
In September 2005, Andreini told Holbrook that his commissions from renewals would be cut by 50 percent. As Holbrook heavily relied on his renewal commissions, this reduction was quite damaging to his earning potential.
In the summer of 2006, Holbrook established an account with the San Mateo Community College District (SMCCD), based on his long-standing relationship with contact person Jim Keller. Keller had been Holbrook’s contact at the Palo Alto Unified School District, which had been listed as an exempt client in the 1990 and 2003 carve out agreements. Andreini disapproved of the way Holbrook obtained the new account because he did so without first obtaining the agency’s approval. As a result, Holbrook was told not to write any new business and to stay out of his renewals. Holbrook believed he was about to be terminated.
B. Holbrook’s Move to MacCorkle; Commencement of Litigation
In May 2007, Holbrook resigned from Andreini and moved to MacCorkle. As he had done with Andreini, Holbrook entered into a trade secret agreement with MacCorkle, and carved out his preexisting clients from that agreement.
Shortly after Holbrook left Andreini, Keller asked to have the SMCCD’s account transferred to MacCorkle. Thereafter, Andreini sent a demand letter to MacCorkle, seeking payment for Holbrook’s entire book of business and threatening to sue if MacCorkle did not respond within five days. Subsequently, Andreini filed the instant action against Holbrook, MacCorkle, and Lauper, claiming trade secret misappropriation, interference with prospective economic advantage, interference with contractual relations, breach of confidence, unfair competition, and breach of contract.
Following defendants’ motion for summary adjudication, a court trial proceeded on the remaining causes of action for trade secret misappropriation and breach of contract.
C. Evidence at Trial
1. The Clients
Andreini presented a list of 15 clients that Holbrook allegedly misappropriated (Exhibit 4). That list referenced the following names: Able Exterminators, Inc.; American Metal & Iron, Inc.; AnaSpec., Inc.; Antique & Salvage Liquidators; Bayside Equipment Company, Inc.; DeAnza Manufacturing Service; Domus Aurea, Inc.; Econo Lube N’ Tune; Highlands Country Club; IFA Nurseries, Inc.; Oodle, Inc.; SMCCD; The Ultratech Division; Van Hooser Enterprises; and Versant Corporation.
Andreini also presented the carve out agreements from 1990 and 2003, which it claimed contained no overlap with the names on Exhibit 4, except for Able Exterminators and DeAnza Manufacturing. The carve out agreements listed the following client names: Able Exterminators, Inc.; City of Mountain View; DeAnza Manufacturing Services; Douglas Broadcasting; Exar Corporation; Exel Microelectronics, Inc.; First Choice Inn, HEGV Enterprises; Jasco Chemical Corporation; Northgate Cottages at Silverado; P.A.U.S.D. Special Events Program; Palo Alto Unified School District; Peninsula Magazine; Silvar Lisco, Inc.; and Ward-Bagby Packaging, Inc.
2. Alleged Solicitation
Dan Centoni, the chief executive officer at Andreini, testified that Andreini was not seeking to prevent Holbrook from contacting the clients on the carve out agreements, as it was agreed that “he could take those accounts.” Centoni conceded that none of the clients listed on Exhibit 4 had been leads given to Holbrook by Andreini.
Centoni believed that the SMCCD came to Andreini “by public bid, ” because it was a public entity. According to Centoni, this particular client was required to invite community brokers to participate in any review of its insurance program, bid process, and proposal procedures.
Centoni testified that Holbrook did not have access to the database where Andreini maintains its client information. Centoni had no knowledge about whether Holbrook revealed any client information to MacCorkle, or whether Holbrook used any such information to solicit clients. Nevertheless, Centoni believed that Holbrook had solicited clients because Andreini began receiving “broker of record” letters approximately a week after Holbrook left. Centoni explained that a broker of record letter is a “tool... used by an insured to change broker[s].” The specific broker of record letters were not produced at trial. Indeed, the only documentary evidence on this issue was a letter from Andreini’s counsel asserting that Andreini had received a broker of record letter from one client, the SMCCD.
Centoni admitted that “announcing a change in job and accepting new business” was an “acceptable practice.” Centoni acknowledged that it was “no secret” that everyone needs insurance. He analogized Andreini’s customer list to the yellow pages to illustrate that it is the client’s policy information (i.e., contact person, renewal date) not merely the client identity that provides an economic advantage.
Roberta Moore, a bookkeeper for Andreini, testified that she prepared Exhibit 4 (the list of clients that Holbrook allegedly misappropriated). Initially, Moore testified that Exhibit 4 represented the accounts Andreini “lost to MacCorkle.” However, she conceded that she had no way of determining whether the accounts went to MacCorkle or another brokerage, as the “broker of record” letters did not identify the new broker.
3. Defense
A day or two after resigning from Andreini, Holbrook began working for MacCorkle. Lauper expressly told Holbrook not to solicit any accounts that were not carved out of his trade secret agreement with Andreini.
Holbrook testified that, with the exception of one client (the SMCCD), all of the clients listed on Exhibit 4 had initiated contact with him after he left Andreini. He explained that he called Keller at the SMCCD to let him know that he had gone to work for MacCorkle. Holbrook stated further that, as he and Keller had been friends for over 30 years, Keller “was more interested in” catching up with Holbrook than discussing insurance with him. Indeed, during this initial conversation, the subject of switching insurance never came up. Rather, it was during subsequent conversations that Keller and Holbrook discussed the issue of switching insurance to MacCorkle.
Holbrook testified that he was responsible for developing the leads that resulted in all of the client accounts listed on Exhibit 4, and that many of the clients listed on Exhibit 4 had either been his clients before he joined Andreini or had been otherwise connected to his clients. Holbrook explained that although Ultratech and Van Hooser had not been named on the 1990 and 2003 carve out agreements, they were subsidiaries of HEGV, which had been listed on the agreements. Also, Bayside Equipment, American Metal & Iron, and Versant were clients that Holbrook had-and lost-before joining Andreini, but which he later reacquired while working at Andreini. Holbrook further testified that Antique & Salvage Liquidators was a division of American Metal & Iron. Additionally, two of the clients, Econo Lube N’ Tube and Oodle Incorporated, were owned by Holbrook’s relatives.
Holbrook, who was 66 years old at the time he left Andreini, explained that he never accessed Andreini’s client database because he “didn’t know how.”
Lauper testified that he did not review Holbrook’s list of clients before Holbrook began working for MacCorkle. Once at MacCorkle, Holbrook presented Lauper with a handwritten list of clients that he wanted to exclude from his trade secret agreement with MacCorkle. Lauper further testified that he told Holbrook not to solicit Andreini’s clients, but advised him that it was acceptable if the clients contacted Holbrook and wanted to move their business to MacCorkle. Lauper believed that Holbrook was entitled to call his former clients and announce that he had moved to MacCorkle; most of the clients, however, had initiated contact with Holbrook. Lauper further stated that no one at MacCorkle had contacted any of Holbrook’s clients.
Lauper testified that knowledge of client names, without more information, did not provide any competitive advantage, because the only information that could be gleaned from a client list is that those companies buy insurance, which is a matter of common knowledge. Nevertheless, MacCorkle requires its employees to sign trade secret agreements because they are “standard practice” in the industry. Although Lauper did not believe trade secrets agreements were enforceable, he explained that MacCorkle used them to dissuade producers from taking business with them when they left the brokerage. Lauper further explained that although he did not believe the identities of MacCorkle’s clients were trade secrets, he did consider specific account information to be “confidential” and that this information belonged to the client and MacCorkle.
4. Expert Testimony
Leonard Paulin, Andreini’s expert, testified that a brokerage firm typically owns the client information, which is often subject to a trade secret covenant and a nondisclosure agreement. Generally, when a producer goes to a new firm, the new firm will compensate the former brokerage for any new business the producer brings with him.
Paulin, however, admitted that when a producer has an existing book of business and negotiates a “carve out” agreement like Holbrook’s, upon joining a new brokerage, that producer owns the client information. Under these circumstances, when the producer moves and takes his clients, the former brokerage does not receive any compensation.
Paulin calculated the current cash value of Andreini’s damages to be in excess of $1.4 million. On cross-examination, Paulin admitted that this calculation was based on annual gross commissions, which did not take into account the costs and expenses in servicing the allegedly misappropriated accounts.
MacCorkle’s expert, Donald Way, testified that payment to a former brokerage for a producer’s book of business was the exception, not the rule, in the insurance industry. Way further explained that if a producer had an existing relationship with a client before he went to work for a brokerage, that client information belonged to the producer and that information would not be subject to a trade secret covenant or noncompete agreement.
D. Statement of Decision and Post Trial Proceedings
The trial court issued a tentative decision in open court, which was later reduced to a written statement of decision. In its written statement of decision, the trial court determined that Holbrook was entitled to take the “carved out” clients to MacCorkle when his employment with Andreini was terminated. The court also ruled that Holbrook was entitled to solicit not only the carved out accounts, but also those accounts having a “close nexus” to the exempt accounts. Based upon this analysis, the court found that Holbrook did not breach his employment agreement with Andreini or otherwise misappropriate Andreini’s trade secrets.
Despite the finding that “Holbrook was entitled to take the accounts and to solicit them, ” the trial court determined that “MacCorkle had no right to misappropriate the proprietary trade secret information that belonged to Andreini.” The trial court’s stated reason for this conclusion was that MacCorkle was not party to the agreements between Andreini and Holbrook. The rationale of the written statement of decision is as follows: “There was evidence that the custom and practice in the industry is that the new brokerage firm will purchase the [b]ook of [b]usiness from the old brokerage firm because the information affords a competitive advantage and that MacCorkle received that competitive advantage without paying for it. MacCorkle misappropriated the proprietary information that was the subject of a Trade Secret Covenant entered into between... Holbrook and Andreini.”
The court further determined that MacCorkle, by reason of its own trade secret and noncompetition agreements, was judicially estopped from denying the existence of trade secrets in the insurance industry. The court concluded that MacCorkle was “judicially estopped from contending that the information is not a protected trade secret, and that it did not misappropriate information that was proprietary and confidential to Andreini.”
In measuring damages, the trial court used the average gross commissions Andreini received for the accounts, multiplied by five years, without any reduction for expenses or for present value. Using this formula, the court assessed the damages to be $1,275,000 “at the time of the conversion.”
In a supplemental statement of decision, the trial court found that MacCorkle’s rejection of Andreini’s demand for payment of Holbrook’s book of business was “willful and malicious.” On that basis, the trial court awarded Andreini statutory attorney fees.
Following numerous objections to the statement of decision and supplemental statement of decision, defendants moved to vacate the judgment (Code Civ. Proc., § 663), which the trial court denied. In denying the motion to vacate the judgment, the trial court reasoned that although Andreini may have waived its trade secrets as to Holbrook, it did not waive them as to MacCorkle. Thus, according to the trial court, Andreini’s agreement with Holbrook did not excuse MacCorkle from its “obligation” to buy the subject trade secrets from Andreini, as required by the “custom and practice” in the insurance industry. The trial court reiterated its judicial estoppel theory, which purportedly estopped MacCorkle from asserting that the subject information was not a trade secret.
The instant appeals followed.
II. DISCUSSION
Defendants raise numerous claims of reversible error, including that the trial court abused its discretion in refusing to vacate the judgment because Holbrook’s ownership of the information precluded any liability for trade secret misappropriation. Andreini seeks reversal on the grounds that the trial court erred in allowing Holbrook to solicit clients that were not on the carve out agreements by reason of the “close nexus” between these clients and the exempt clients.
A. Scope and Standard of Review
The parties disagree about the standard of review to be applied to their claims. Defendants contend that the issue of trade secret misappropriation is subject to independent review because the ultimate facts were undisputed. Andreini, on the other hand, asserts that this issue is dependent upon the trial court’s factual findings, which are reviewed for substantial evidence. Andreini further asserts that its cross-appeal is subject to independent review, as it involves a question of contract interpretation without any conflicting evidence. Defendants agree that matters of contract interpretation pose questions of law; however, Andreini raised issues involving contested facts, the resolution of which are binding if supported by substantial evidence.
With respect to factual disputes explicitly or implicitly resolved by the trial court in its statements of decision, we will apply the substantial evidence standard to those factual findings. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.) Particularly pertinent in a nonjury trial is the doctrine of implied findings, which provides that a “ ‘party must state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party.... [I]f a party does not bring such deficiencies to the trial court’s attention, that party waives the right to claim on appeal that the statement was deficient... and hence the appellate court will imply findings to support the judgment.’ [Citation.] Stated otherwise, the doctrine (1) directs the appellate court to presume that the trial court made all factual findings necessary to support the judgment so long as substantial evidence supports those findings and (2) applies unless the omissions and ambiguities in the statement of decision are brought to the attention of the superior court in a timely manner. [Citations.]” (Ibid.)
In order to avoid an implied finding on appeal in favor of the prevailing party, an appellant must complete a “two-step process” to “bring ambiguities and omissions in the statement of decision’s factual findings to the trial court’s attention.” (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 (Arceneaux).) First, the appellant must request a statement of decision. Once the statement of decision is issued, the appellant must bring any omissions or ambiguities to the attention of the trial court within specified statutory time limits. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590; Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.)
Here, Andreini argues that defendants are bound by the doctrine of implied finding because defendants failed to request a statement of decision. This contention is without merit. The trial court, on its own motion, rendered a tentative statement of decision in open court per California Rules of Court, rule 3.1950(a). After hearing the trial court’s ruling, counsel for defendants specifically requested the preparation of a statement of decision pursuant to Code of Civil Procedure section 632. Upon hearing this request, the trial court reiterated that it had made a tentative decision under California Rules of Court, rule 3.1590(a); the trial court then asked plaintiff’s counsel to prepare the written statement of decision. Defendants’ failure to request a statement of decision before the trial court’s sua sponte ruling in open court is of no moment, particularly since defendants made specific objections to the statement of decision, and also moved to vacate the judgment on the grounds that it was erroneous and inconsistent with the facts. Accordingly, we conclude the doctrine of implied findings does not preclude defendants from raising their claims of reversible error.
As to questions of law, we will conduct an independent review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801; Elysian Investment Group v. Stewart Title Guaranty Co. (2002) 105 Cal.App.4th 315, 319 [contract interpretation without conflicting extrinsic evidence is a question of law].)
Finally, issues relating to the exercise of discretion on a motion to vacate the judgment are subject to an abuse of discretion standard. (See National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 524 [motion pursuant to Code Civ. Proc., § 663].) “The trial court’s exercise of discretion must be guided, however, by fixed legal principles, and must ‘be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
With these principles in mind, we address the parties’ claims on appeal.
B. Misappropriation of Trade Secrets
Misappropriation of trade secrets is an intentional tort. (Civ. Code, § 3426.1; PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1382 (PMC, Inc.).) Under California’s Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.) (hereinafter UTSA) “Misappropriation” is defined as follows: “(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or [¶] (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: [¶] (A) Used improper means to acquire knowledge of the trade secret; or [¶] (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: [¶] (i) Derived from or through a person who had utilized improper means to acquire it; [¶] (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or [¶] (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use....” (Civ. Code, § 3426.1, subd. (b), italics added.)
As is made clear by the statute, misappropriation requires either the acquisition or disclosure of a trade secret by improper means. “ ‘Improper means’ includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” (Civ. Code, § 3426.1, subd. (a).)
Unless otherwise noted, we will subsequently refer to MacCorkle and Lauper as “MacCorkle.”
In the instant case, the trial court determined that Holbrook did not breach his nondisclosure agreement with Andreini when he took the client information with him to MacCorkle, because he owned the challenged client information. The trial court also found, as a consequence, that Holbrook did not misappropriate Andreini’s trade secrets. In other words, Holbrook did not use any improper means in acquiring the client information and in utilizing it at his new company. Nevertheless, the trial court concluded that MacCorkle was liable for misappropriation because it was not a party to the carve out agreements between Holbrook and Andreini. The trial court also concluded that MacCorkle was judicially estopped from denying that it misappropriated the trade secrets because, despite its contentions that trade secrets do not exist in the insurance industry, MacCorkle has its own employees sign nondisclosure agreements. Neither of these findings constitutes a legally cognizable basis for imposing liability for misappropriation under the UTSA.
“Under the UTSA, a prima facie claim for misappropriation of trade secrets ‘requires the plaintiff to demonstrate: (1) the plaintiff owned a trade secret, (2) the defendant acquired, disclosed, or used the plaintiff’s trade secret through improper means, and (3) the defendant’s actions damaged the plaintiff.’ [Citation.]” (CytoDyn of New Mexico, Inc. v. Amerimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 297.)
Even construing the evidence in the light most favorable to Andreini, it is impossible to conclude that MacCorkle was liable for trade secret misappropriation. By reason of the carve out agreements, the trial court found that Holbrook, not Andreini, owned the subject client information.
The instant case is clearly distinguishable from Gordon v. Landau (1958) 49 Cal.2d 690 (Gordon), a pre-UTSA case the trial court relied upon to impose liability against MacCorkle for trade secret misappropriation. In Gordon, a door-to-door salesman was prohibited from contacting his former clients, where his employment agreement prevented him from divulging the names of his prior customers or soliciting their business for one year following termination of employment. (Id. at p. 692.) The Gordon court concluded that the agreement was valid under Business and Professions Code section 16600 because it did not restrain the employee from engaging in his profession. (Gordon, at p. 694.) From Gordon we conclude that a contract will not be void under Business and Professions Code section 16600 when it is necessary to protect trade secrets. Although the trade secret exemption rests on somewhat shaky legal grounds (see Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 946, fn. 4; Dowell v. Biosense Webster, Inc. (2009) 179 Cal.App.4th 564, 578; The Retirement Group v. Galante (2009) 176 Cal.App.4th 1226, 1238-1239), we have no quarrel with this basic premise. But, neither the facts nor the holding of Gordon have any application in the instant case. Holbrook, unlike the salesman in Gordon, did not misappropriate any trade secrets belonging to Andreini nor did he otherwise breach his trade secret covenant. Accordingly, his new employer, MacCorkle, likewise could not have misappropriated Andreini’s trade secrets because the information belonged to Holbrook, not Andreini.
Moreover, even assuming, arguendo, that MacCorkle acquired trade secret information, “[a]n ‘acquirer’ is not liable under the UTSA unless he knew or had reason to know that the trade secret was improperly disclosed. (Civ. Code, § 3426.1, subd. (b).)” (Ajaxo, Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 66, second italics added.) Here, by reason of Holbrook’s carve out agreements with Andreini, MacCorkle had no reason to know of any purported misconduct by Holbrook. If the use of a trade secret without knowledge that it was acquired by improper means does not subject a person to liability (Components for Research, Inc. v. Isolation Products, Inc. (1966) 241 Cal.App.2d 726, 729-730), then, a fortiori, use of a trade secret which was not acquired by improper means cannot support liability.
It is difficult to fathom how the trial court could conclude that Holbrook was not liable for breach of contract or trade secret misappropriation by reason of the carve out agreements, yet find that MacCorkle was liable for trade secret misappropriation based on the fact that it was not a party to such agreements. MacCorkle, as a stranger to agreements between Andreini and Holbrook, had neither the benefits nor the burdens associated with either the carve out agreements or the trade secret agreement. (See, e.g., Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1714 [general rule of contracts is those who take benefit must also take burden]; see also Smith v. Microskills San Diego L.P. (2007) 153 Cal.App.4th 892, 896 [nonsignatory to arbitration agreement generally not required to arbitrate].)
Although it is possible for a third party to interfere with a contract (see Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126), those facts are not before us, as the trial court summarily adjudicated this cause of action and Andreini does not challenge this ruling on appeal.
There is ample authority to support a finding of misappropriation against a principal based on the tortious acts of its agents. (See, e.g., PMC, Inc., supra, 78 Cal.App.4th at pp. 1378 1387 [and cases cited therein].) But we know of no authority or legal theory upon which a principal can be liable for misappropriation by virtue of its agent’s entirely lawful use of the trade secrets.
Further, there is no legal basis for finding that MacCorkle is judicially estopped from disclaiming liability for trade secret misappropriation. “The doctrine of judicial estoppel prevents a litigant from taking two mutually incompatible positions at different times where permitting him to do so would inflict prejudice on his adversary. The conditions for the doctrine’s operation have been described as follows: ‘(1) the same party has taken two positions; (2) the positions were taken in judicial... proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)” (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 230-231.)
Nothing in this record satisfies the basic condition for the doctrine, which is that MacCorkle has taken two positions that are totally inconsistent with each other. According to Andreini, the first position taken by MacCorkle was embodied in Lauper’s testimony that he did not believe trade secrets exist in the insurance industry, and the “inconsistent” position was that MacCorkle requires its employees to sign trade secret agreements. Whatever the import of this testimony, however, the simple fact remains that MacCorkle has taken a wholly consistent position throughout this litigation, i.e., that “Holbrook’s contact[s] with the subject clients w[ere] proper and legal under California law.”
Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, 954-959, cited by the trial court and relied on by Andreini on appeal, does not compel a contrary conclusion. In Drain, the court held that a plaintiff who had sworn he was permanently disabled from and thus unable to perform any of his job-related duties or, indeed, any occupation at all, was judicially estopped to allege that his employer failed to accommodate his disability when it had done so for Caucasian employees. (Id. at p. 958.) Without belaboring the point, Drain is not even remotely similar to the present case.
In sum, Andreini has not established a legal basis upon which to predicate relief against MacCorkle and Lauper for misappropriation of trade secrets; thus, reversal is required.
By reason of this conclusion, we need not address defendants’ other claims of error.
2. Holbrook
In its cross-appeal, Andreini claims the trial court erred in determining that Holbrook “was entitled to solicit clients not on the exempt account list, if they had a close nexus to the listed clients....”
Preliminarily, we note that in its 48-page, combined respondent’s brief and opening brief, Andreini devotes barely three pages to discuss its claim of error. Defendants assert that Andreini forfeited its claims on appeal, due to the absence of cogent legal analysis, as well as its failure to fairly summarize the evidence. We agree. (See, e.g., Miller v. Filter (2007) 150 Cal.App.4th 652, 671 [claim disregarded on appeal due to inadequate analysis]; see also Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [point asserted without argument or authority lacks foundation and requires no discussion by reviewing court].)
Nevertheless, even exercising our discretion and reviewing this otherwise forfeited claim (see In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7), it fails on the merits. Although Andreini frames the issue as to whether “sufficient evidence” supports the trial court’s determination, it advocates for de novo review. According to Andreini, the substantial evidence standard of review is inapplicable here because the issue hinges on a matter of contract interpretation and no conflicting extrinsic evidence is involved. We disagree.
According to Andreini, the “undisputed... evidence establishes that both parties knew, when they signed the 2003 [carve out] agreement that [Andreini] owned all accounts that were not on the exempt account list and that [Holbrook] could not solicit any unlisted accounts after he left [Andreini].” The record, however, establishes otherwise. Although Centoni believed that the carve out agreements did not purport to give Holbrook “a blanket approval to do business... with people that he has known for years, ” his testimony was vague and equivocal about the identities of the specific companies that were purportedly subject to the agreements. Specifically, he was uncertain about how the carve out agreements applied to divisions within and successors of the listed companies, explaining that it would depend on “how [they] became... client[s].” Centoni further testified that if Andreini knew Econo Lube N’ Tune and Oodle Incorporated were owned by Holbrook’s relatives, Holbrook would have been able to “take them” to his new employer.
Centoni conceded that he had no knowledge about whether Holbrook revealed any client information to MacCorkle, or whether Holbrook used any such information to solicit clients. Nevertheless, he believed that Holbrook had solicited clients because Andreini began receiving “broker of record” letters approximately a week after Holbrook left. However, the only documentary evidence on this issue was a letter from Andreini’s counsel asserting that Andreini had received a broker of record letter from one client, the SMCCD.
Holbrook testified that he did not consider the SMCCD’s absence from the carve out agreement to mean that this client was subject to the Trade Secret Covenant. Holbrook described his relationship with the contact person at the SMCCD, as well as his preexisting relationships with other clients, including his family members. Given the conflicting evidence, and the ruling in favor of Holbrook, the trial court reasonably inferred that Holbrook correctly believed he was entitled to do business with not only the listed clients, but also with those clients having a close nexus to the listed clients. We are bound by this ruling. “Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact....” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) In this regard, we are bound by the trial court’s determination that Holbrook solicited clients listed on Exhibit 4, despite the unrefuted testimony that he only contacted SMCCD after leaving Andreini.
Nevertheless, it was undisputed that Holbrook was responsible for developing the leads that resulted in all of the client accounts listed on Exhibit 4. Finally, the majority of the clients listed on Exhibit 4 had either been Holbrook’s clients before joining Andreini or had been otherwise connected to his previous clients.
Accordingly, we conclude the trial court did not err in finding in favor of Holbrook on the breach of contract and misappropriation causes of action.
By reason of this holding, we do not address whether Holbrook’s employment agreement with Andreini was void under Business and Professions Code section 16660 or whether Andreini’s alleged breach excused Holbrook’s conduct.
III. DISPOSITION
The judgment is reversed to the extent it imposes trade secret liability on defendants MacCorkle and Lauper. By reason of this holding, the order awarding attorney fees to Andreini is necessarily reversed. The judgment is affirmed to the extent it finds in favor of defendant Holbrook on the breach of contract and trade secret misappropriation causes of action. The matter is remanded to the trial court for proceedings consistent with this opinion.
Defendants are entitled to their costs on appeal.
We concur: RUVOLO, P.J., REARDON, J.