Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC279224, David L. Minning, Judge.
Grodsky & Olecki, Michael J. Olecki and Zachary Rothenberg for Plaintiffs and Appellants.
Sheppard, Mullin, Richter & Hampton, Gregory A. Long, James F. McShane, Whitney Jones Roy and Moe Keshavarzi for Defendant and Respondent.
MALLANO, P. J.
Plaintiffs are Brazilian companies that distributed defendant Wynn Oil Company’s (Wynn) petroleum products in Brazil in the 1990’s. In 2002, plaintiffs sued Wynn for damages for fraud and intentional and negligent misrepresentation, alleging that from 1995 to 2000, Wynn made false promises that it would institute local production of its products when warranted by market conditions, thereby inducing plaintiffs to invest millions of dollars to develop the Brazilian market for Wynn’s products. The trial court granted Wynn’s summary judgment motion on the ground that plaintiffs’ factually devoid discovery responses on the issue of proximately caused lost investment damages entitled Wynn to judgment as a matter of law. We agree with the trial court and affirm the judgment.
BACKGROUND
A. Distributor Agreement
As set out in the parties’ separate statements in support of and in opposition to the summary judgment motion and plaintiffs’ discovery responses, plaintiffs did not dispute the following background facts regarding the parties’ dealings.
Wynn, a California corporation, manufactured automotive petroleum products and service equipment. In November 1993, Wynn and Industria Comercio de Lubrificantes Avanço Ltda. (Avanço), a Brazilian company, entered into a written “Distributor Agreement” (Agreement). Under the Agreement, Avanço was appointed as a nonexclusive independent distributor of Wynn’s products in Brazil. João Miguel, one of Avanço’s owners and its president, signed the Agreement on behalf of Avanço. Miguel was also the owner and supervising manager of Rex Lubrificantes Ltda. (Rex-L), Rex Distribuidora Ltda. (Rex-D), and Superlubre Com. de Lubrificantes Ltda. (Superlubre). Both Avanço and Miguel were plaintiffs but neither opposed Wynn’s summary judgment motion and neither appealed from the judgment entered against them. We refer to Rex-L, Rex-D and Superlubre as plaintiffs.
Plaintiffs did not buy products from Wynn, but obtained Wynn’s products from Avanço or from one another and then sold Wynn’s products to their sub-distributors in Brazil. Rex-L was the master distributor of Wynn’s products until 1999, when Rex-D became the master distributor. Superlubre took care of product distribution on a national level in Brazil. The Brazilian market for Wynn’s products expanded and was profitable to all parties from 1993 to 1998. But in 1999, the currency exchange rate between the United States and Brazil became “disastrous” for plaintiffs. In late 2000 and early 2001, three offices of Superlubre closed and their business activities were transferred to third parties. By 2001, Avanço owed Wynn, or its international receivables insurer, about $1.3 million. Rex-L went out of business in 2002.
In May 2002, Wynn terminated the Agreement with Avanço. The Agreement provided, “Either [Avanço] or Wynns may terminate this Agreement at any time without cause or penalty by giving written notice to the other party not less than thirty (30) days prior to the effective date of such termination.”
According to plaintiffs, before Wynn terminated the Avanço Agreement, it hired a key employee of plaintiffs, Hamid Mohtadi, to help Wynn “steal Plaintiffs’ business in Brazil.” After Wynn terminated the Avanço Agreement, Mohtadi negotiated a distributorship contract between Wynn and a third party. Wynn now has a contract with the third party for local production of its products and distribution contracts with plaintiffs’ former subdistributors in Brazil.
B. Trial Court Proceedings
In August 2002, plaintiffs filed the instant action against Wynn. The only causes of action at issue on this appeal are the first, second, and third causes of action of the operative complaint, the second amended complaint. The causes of action, labeled intentional misrepresentation, fraudulent concealment, and negligent misrepresentation, are based on the allegations that Wynn had no intention of instituting a manufacturing system in Brazil when it made such representations to plaintiffs. In reliance on such representations, plaintiffs “continued their affiliation with Wynn, and further continued investing and/or losing millions of dollars in promoting Wynn products.” Plaintiffs also alleged that “even after the Brazilian Real began to drop in value — and even as Plaintiffs began to lose money by trying to prop up the deteriorating market for Wynn products manufactured outside of Brazil — Plaintiffs persisted in working hard on Wynn’s behalf.”
Plaintiffs filed no opposition to Wynn’s summary judgment motion regarding the fifth through eighth causes of action (for misappropriation of trade secrets, interference with advantageous business relations, interference with contractual relations, and unfair competition). The fourth cause of action was not asserted against Wynn.
In their second amended complaint, plaintiffs claimed $20 million in damages. Wynn sought to discover details of plaintiffs’ damages contentions. Three special interrogatories (Nos. 88, 89, and 90) asked plaintiffs to (1) state all facts supporting their contention that, “‘[a]s a direct and proximate result of Wynn’s misrepresentations, Plaintiffs have been damaged in a sum in excess of $20 million’”; (2) state the dollar amount of “damages YOU have suffered as a result of Wynn’s alleged misrepresentations”; and (3) “[d]escribe in detail how YOU have determined the dollar amount of YOUR damages suffered as a result of WYNN’S alleged misrepresentations.”
Unsatisfied with plaintiffs’ responses to interrogatories, Wynn filed motions to compel. The trial court took the motions to compel off calendar, but ordered plaintiffs to file supplemental responses to Wynn’s special interrogatories on the issue of damages. A discovery referee was appointed in September 2004. After plaintiffs served second supplemental responses to the interrogatories, which contained figures purporting to be revenues for the years 1999 through 2001, Wynn served a second motion to compel.
The discovery referee recommended, and the superior court judge ordered, that plaintiffs provide supplemental interrogatory responses which state “the specific amounts of damages claimed, and explain lucidly, in reasonable detail, the manner in which the specific amounts are calculated.” With respect to document production, the court order stated that “plaintiffs assert most financial statements, tax returns, and general ledgers were destroyed in a warehouse fire in 1999. But . . . Miguel testified that his accountant continued to prepare financials for 2000, 2001, and 2002, yet these documents have not been produced. [¶] Plaintiffs’ counsel affirm that plaintiffs’ former accountants have some additional documents that are called for, and that plaintiffs are continuing to gather these and will produce them.” Plaintiffs were ordered to produce “those post-fire financial statements, balance sheets, general ledgers, and other responsive documents which they possess or control and which have not heretofore been produced.”
In February 2005, plaintiffs served their third supplemental interrogatory responses, claiming both lost investment and lost profits damages and setting out dollar amounts for each category. As to lost investment damages, Superlubre claimed damages of $26,890, Rex-D claimed damages of $2,012,421, and Rex-L claimed damages of $1,213,870. In response to an interrogatory asking for each plaintiff to describe in detail how it calculated the dollar amount of damages, Rex-L and Superlubre stated, “Plaintiff’s lost investment was determined by calculating Plaintiff’s investments in fairs, promotional materials, publicity, and training from 1996 through 2000. A compilation of the information included in this damages category is attached hereto as Exhibit 1 and incorporated by reference herein.” Rex-D stated, “Plaintiff’s lost investment was determined by calculating Plaintiff’s investments in fairs, promotional materials, publicity, and training from 1996 through 2000, as well as Plaintiff’s costs associated with the placement (excluding sale) of various Wynn-related equipment and machines with different customers and third-parties throughout Brazil. A compilation of the information included in this damages category is attached hereto as Exhibit 1 and incorporated by reference herein.” Exhibit 1 broke down the amounts spent by each plaintiff from 1994 to 2002 on fairs, promotional materials, publicity, and training. Although Rex-D’s interrogatory response claimed lost investment damages of over $2 million, exhibit 1 reflected a total amount of only $512,421.
In addition to the foregoing information, plaintiffs’ third supplemental responses also stated in pertinent part: “But for Wynn’s misrepresentations, Plaintiffs would not have invested to promote Wynn’s products in the Brazilian marketplace beginning in 1993. If Wynn had honored its promises to (1) implement local production in 1999, (2) retain Plaintiffs as its exclusive Brazilian distributors, and (3) not terminate Plaintiffs without cause, Plaintiffs would have continued to act as Wynn’s exclusive Brazilian distributors, and would have been able to purchase locally manufactured products at a considerable cost savings.”
With respect to the documents ordered to be produced, plaintiffs produced no profit and loss statements or balance sheets for the years 2001 through 2004. Plaintiffs produced no general ledgers and related documents because they construed the court order as not requiring that they produce documents in the custody of their accountants. Plaintiffs offered Wynn the opportunity to inspect 600 boxes of documents in Brazil, but conceded that the boxes were not indexed and plaintiffs could not confirm the contents of the boxes. Deeming the responses inadequate, Wynn moved for terminating or other sanctions. In October 2005, upon recommendation by the discovery referee, the court ordered that plaintiffs furnish a complete index of the general ledgers and other financial documentation now being tendered for production in Brazil, that plaintiffs make the documents available for inspection by Wynn, and that plaintiffs were barred from offering in evidence at trial any such financial documents not produced by October 31, 2005.
In October 2005, Wynn took 12 depositions in Brazil. Wynn requested to depose plaintiffs’ former accountants, but plaintiffs were unwilling or unable to secure their attendance and instead offered their expert witness, Edson Tanaguti. Tanaguti testified that he based his lost profits calculations not on financial statements, but on 1998 income tax returns, which plaintiffs refused to produce on grounds of privilege. Wynn moved a second time for terminating sanctions. In January 2006, the court adopted the recommendation in the report of the discovery referee and issued an order precluding plaintiffs “from offering proof of or claiming lost profits as part of their damages. Plaintiffs should remain free to attempt to prove their lost investment claim, which apparently is not affected by the failure to provide the discovery which is the subject of this report.”
Wynn thereafter moved for summary judgment on two grounds: (1) there was no evidence that Wynn made promises without the intent to perform and (2) there was no evidence of “proximately caused” lost investment damages and pursuant to the trial court’s October 2005 order barring plaintiffs from introducing into evidence any financial documents not produced by October 31, 2005, plaintiffs could not reasonably obtain evidence of proximately caused lost investment damages.
Wynn argued that plaintiffs’ claims for lost investment damages were unsupported by any documents or accounts to show that the amounts in exhibit 1 to the third supplemental interrogatory responses were actually spent. Wynn also maintained that there was no evidence that “these amounts were ‘investments,’ as opposed to mere expenses made in the ordinary course of the plaintiffs’ businesses. There is no evidence demonstrating whether these purported expenses resulted in profit or in loss, or in what amount, in any given year.”
Wynn’s motion was supported by the deposition testimony of plaintiffs’ former accounts payable and receivable clerk, Gustavo Quevedo, who testified that he compiled exhibit 1 by using invoices, checks, and receipts that he found in about 200 boxes in Sao Paulo, Brazil.
According to the declaration of Wynn’s attorney, plaintiffs did not produce any invoices, checks, or receipts used to compile exhibit 1. But plaintiffs produced “thousands and thousands of pages of what appear to be Brazilian invoices or receipts, in the Portuguese language, but there does not appear to be any logical or factual connection — at least none that the plaintiffs have identified to us — between those documents and the dollar or Brazilian [Real] amounts set forth in the Third Supplemental Interrogatory Responses or its Exhibits.”
Marcos Getchell, a Portuguese-fluent paralegal for Wynn’s attorneys, submitted a declaration stating that he reviewed the documents produced by plaintiffs purporting to support their claim for lost investment damages. The documents fell into several categories: (1) employee social security collection statements; (2) employee transportation voucher receipts; (3) payroll records; (4) payroll or commission deposit slips issued by various banks; (5) water, telephone and utility bills for various individuals and billing addresses; (6) leases and lease termination agreements; and (7) employee contract rescission documents. In response to a request that plaintiffs produce documents supporting their claim that they invested and lost millions of dollars in promoting Wynn’s products, plaintiffs produced a stack of hotel, restaurant meal, taxi, airfare and other travel receipts, most of them referring to Superlubre (which claimed only about $27,000 in lost investment damages).
In opposition to the motion, plaintiffs agreed that they were precluded by the court order from seeking damages for lost profits, but maintained there were triable issues as to the issue of proximate cause of lost investment damages. Plaintiffs submitted a separate statement disputing Wynn’s statements of undisputed facts regarding lost investment damages with two declarations of Miguel’s daughter, Adriana Ventura. But the trial court sustained Wynn’s objections to her declarations and attached exhibits, which ruling is not challenged on appeal. Accordingly, we do not summarize her declarations or consider them.
Plaintiffs’ opposition to the motion did not address the issues of whether the documents reviewed by Getchell and Wynn’s attorneys, including the hotel, meal, and travel receipts, constituted the supporting documents to exhibit 1 and whether the documents produced to Wynn were the same documents which Quevedo used to compile exhibit 1. In other words, there was no evidence showing any backup documents for the amounts set out in exhibit 1 for fairs, promotional materials, publicity, and training.
The trial court’s order granting Wynn’s motion stated that plaintiffs “failed to proffer competent evidence of proximately caused damages sufficient to raise a triable issue of material fact as to any cause of action set forth in their Second Amended Complaint.” Plaintiffs appealed from the summary judgment in Wynn’s favor. Plaintiffs’ briefs address both the issue of fraudulent intent and the issue of causation of damages. Because we uphold the summary judgment on the issue of causation of damages, we need not discuss the issue of fraudulent intent.
DISCUSSION
A. Standard of Review
“A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861 [(Aguilar)].) When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.] We review the record and the determination of the trial court de novo.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002–1003.) When the defendant makes a prima facie showing of the nonexistence of any triable issue of material fact, he has carried his burden of production and causes a shift, so the plaintiff is then subjected to a burden of production to make a prima facie showing of the existence of a triable issue of material fact. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101 (Andrews).)
The defendant may show that the plaintiff does not possess, and cannot reasonably obtain, needed evidence through factually devoid discovery responses to interrogatories seeking all facts on which the plaintiff’s claim is based. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580, 590.) Thus, “[c]ircumstantial evidence supporting a defendant’s summary judgment motion ‘can consist of “factually devoid” discovery responses from which an absence of evidence can be inferred,’ but ‘the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.’ [Citation.]” (Andrews, supra, 138 Cal.App.4th at p. 101, fn. omitted.)
“‘An issue of fact can only be created by a conflict of evidence. It is not created by “speculation, conjecture, imagination or guess work.” [Citation.] Further, an issue of fact is not raised by “cryptic, broadly phrased, and conclusory assertions” [citation], or mere possibilities [citation].’” (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166.) “Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation. [Citations.]” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)
The basis for the trial court’s summary judgment ruling was that Wynn made a prima facie showing of entitlement to judgment in its favor on the issue of proximately caused lost investment damages and that plaintiffs failed to proffer evidence creating a triable issue of fact. Thus, we focus on the elements of causation and damages in fraud actions.
B. Causation and Damages for Fraud
“Under California law, a party asserting fraud must establish that its damages are the ‘proximate’ or ‘legal’ result of the fraudulent conduct.” (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 869–870.) “Generally, to recover for fraud, the plaintiff must prove ‘“‘detriment proximately caused’ by the defendant’s tortious conduct. [Citation.] Deception without resulting loss is not actionable fraud. [Citation.] Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.’” [Citations.]’ [Citation.]” (Id. at p. 870.)
“There are two measures of damages for fraud: out of pocket and benefit of the bargain. [Citation.] The ‘out-of-pocket’ measure of damages ‘is directed to restoring the plaintiff to the financial position enjoyed by him prior to the fraudulent transaction, and thus awards the difference in actual value at the time of the transaction between what the plaintiff gave and what he received. The ‘benefit-of-the-bargain’ measure, on the other hand, is concerned with satisfying the expectancy interest of the defrauded plaintiff by putting him in the position he would have enjoyed if the false representation relied upon had been true; it awards the difference in value between what the plaintiff actually received and what he was fraudulently led to believe he would receive.’” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240.) “It is generally recognized, under both the benefit-of-the-bargain and the out-of-pocket-loss rules, that when, as a result of the fraud, the person defrauded has made expenditures which were reasonable under the circumstances, these may ordinarily be recovered, insofar as they have been lost or rendered fruitless because of the deceit.” (Garrett v. Perry (1959) 53 Cal.2d 178, 186.)
Plaintiffs do not challenge the ruling barring them from recovering lost profits, nor do they claim they are entitled to the benefit-of-the-bargain measure of damages. Accordingly, our inquiry is whether Wynn’s summary judgment motion made a prima facie showing that plaintiffs did not possess and could not reasonably obtain evidence showing proximately caused lost investment damages. For the sake of discussion, we assume that the types of expenses for fairs, promotional materials, publicity, and training claimed in exhibit 1 are properly recoverable as lost investment damages.
C. Factually Devoid Interrogatory Responses
Applying a “stringent review” of the evidence supporting Wynn’s summary judgment motion — primarily plaintiffs’ discovery responses — we conclude that Wynn made a prima facie showing entitling it to summary judgment because plaintiffs’ discovery responses did not provide sufficient evidence of proximately caused lost investment damages. Because Wynn made such a showing, the burden was shifted to plaintiffs to produce evidence of proximate causation of lost investment damages. The trial court sustained an objection to the only evidence addressing this issue in plaintiffs’ separate statement, so our analysis entails only the evidence submitted by Wynn.
According to plaintiffs’ interrogatory responses, their lost investment damages consist of the amounts they spent on fairs, promotional materials, publicity, and training from 1994 through 2002 (as set out in exhibit 1 to their third supplemental interrogatory responses). Plaintiffs’ former employee Quevedo testified that he compiled exhibit 1 from invoices, checks and receipts which he found in some 200 boxes of documents in Brazil. But plaintiffs never identified or produced to Wynn the documents which Quevedo used to compile exhibit 1. Wynn’s attorney declared that there did not appear to be any connection between the documents produced by plaintiffs and the lost investment damages claimed in exhibit 1, and this conclusion is supported by the declaration of the paralegal for Wynn’s attorney. It is entirely speculative that the documents which plaintiffs produced to Wynn included the documents used by Quevedo to compile exhibit 1. It is also speculative whether the documents reviewed by the paralegal for Wynn’s attorneys, including hotel, meal, and travel receipts, had any correlation to amounts allegedly expended on fairs, promotional materials, publicity, and training. And because the trial court’s October 2005 order barred plaintiffs from offering in evidence any financial documents not produced by October 31, 2005, plaintiffs were barred from ever providing the backup documents for exhibit 1 if such documents were not produced to Wynn before October 31, 2005.
We conclude that plaintiffs’ discovery responses did not establish that the expenses claimed in exhibit 1 resulted from, or were incurred because of, Wynn’s alleged fraudulent misrepresentations or concealments regarding the issue of local product production. Whether the expenses in exhibit 1 were incurred as a result of Wynn’s alleged fraud is entirely speculative and conjectural. Viewing the interrogatory responses most favorably to plaintiffs, they are nevertheless too conclusory to permit an inference in plaintiffs’ favor — that is, to “allow a reasonable trier of fact to find the underlying fact [(proximately caused lost investment damages)] in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)
Plaintiffs’ interrogatory responses were “factually devoid” because the responses did not establish that plaintiffs had evidence of proximately caused lost investment damages. Wynn also showed that plaintiffs could not reasonably obtain evidence necessary to create a triable issue of fact as to proximately caused lost investment damages because plaintiffs were twice ordered by the court to provide supplemental responses to interrogatories Nos. 88 through 90, and their responses still failed to show any proximately caused lost investment damages. Because there was ample opportunity for discovery and no additional admissible evidence was offered by plaintiffs in opposition to the summary judgment motion, the record shows that plaintiffs could not reasonably obtain evidence to create a triable issue.
Plaintiffs contend that their interrogatory responses were not “‘factually devoid’” because “it cannot reasonably be inferred that the discovery at issue encompassed the entire universe of relevant facts,” there was no “‘inference of completeness’” in their discovery responses, and the interrogatories were not “specifically targeted to lost investment damages.” We disagree.
Interrogatory No. 88 was directed to the issue of proximately caused damages. It asked plaintiffs to state all facts supporting their allegation that they suffered damages as a result of Wynn’s misrepresentations. The interrogatory thus applied to all types or measures of damages, including lost investment damages. And plaintiffs knew that the interrogatory called for facts relating to lost investment damages because their responses addressed that issue. The situation here is distinguishable from that in two cases cited by plaintiffs, Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (Scheiding) and Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114 (Gulf).
In Scheiding, involving a worker’s asbestos-related injury, summary judgment was granted on the issue of causation in favor of Dinwiddie Construction. In reversing the summary judgment, the Court of Appeal held that the worker’s deposition testimony was not factually devoid because he was never asked whether Dinwiddie had been the general contractor at any of his jobsites. (Scheiding, supra, 69 Cal.App.4th at p. 80.) The court stated that “there is nothing in this record to suggest his answers were complete as to Dinwiddie. To put it another way, the duty to answer completely only extended so far as the reasonable ambit of the questions which were asked.” (Ibid.)
Gulf involved a legal malpractice action by an insurance company against the attorneys who represented its insured in prior litigation, which the insurer settled. Summary judgment was granted in favor of the attorneys and against Gulf on the ground, among others, that the insurer presented factually devoid discovery responses on the issue of causation of damages. The Court of Appeal reversed because the basis for the summary judgment was an interrogatory that did not call for information on the issue of the damages sustained by Gulf as a result of the lawyers’ malpractice, but the damages sustained by the underlying plaintiff who sued Gulf’s insured in the prior litigation. The Court of Appeal noted that there was no direct correlation between the damages suffered by Gulf and those suffered by the plaintiff in the underlying lawsuit, the interrogatory did not call for information on the subject of the causation of Gulf’s damages, and the insurer’s responses (which were nonresponsive) did not constitute factually devoid discovery so as to shift the burden to Gulf on the issue of causation. (Gulf, supra, 79 Cal.App.4th at pp. 135–136.)
Neither Scheiding nor Gulf are of any aid to plaintiffs because the interrogatories in this case called for information directly pertinent to the issue of proximately caused damages, which includes lost investment damages.
We reject plaintiffs’ contention that there should be no “inference of completeness” as to their discovery responses because a precise damages calculation required financial information solely in Wynn’s possession and because Wynn allegedly thwarted plaintiffs’ discovery by failing to provide responsive information as to Wynn’s local production costs and pricing. The information pertaining to Wynn may be pertinent to lost profits, but not to plaintiffs’ lost investment damages, which, according to their own admission, is comprised of expenses for fairs, promotional materials, publicity, and training. The latter information is the type that would be solely in plaintiffs’ possession.
Also without merit is plaintiffs’ argument that their discovery responses did not create an inference that they could not reasonably obtain necessary evidence to create a triable issue. Given the circumstances of this case, where plaintiffs were twice ordered to provide supplemental interrogatory responses, where they were told that they would be precluded from offering into evidence any documents not produced to Wynn by October 31, 2005, and where they produced no admissible evidence as to proximately caused lost investment damages in opposition to the summary judgment motion, the only reasonable inference is that plaintiffs had no additional evidence to produce. Even now, plaintiffs do not identify any additional evidence pertaining to lost investment damages that they possess or could obtain. For all of the foregoing reasons, plaintiffs do not persuade us that the trial court erred in granting summary judgment in favor of Wynn.
DISPOSITION
The judgment is affirmed. Defendant Wynn Oil Company is entitled to costs on appeal.
We concur: ROTHSCHILD, J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.