Filed 11/5/19 Galvez v. All Seasons Transport CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

OCTAVIO B. GALVEZ et al.,

Plaintiffs, Cross-defendants and Appellants,

v.

ALL SEASONS TRANSPORT, INC., et al.,

Defendants, Cross-complainants and Respondents.

D075545

(Super. Ct. No. CIVDS1109953)

APPEAL from a judgment of the Superior Court of San Bernardino County, David S. Cohn and Michael A. Sachs, Judges. Affirmed.

Law Office of Patrick Thomas Santos and Patrick Thomas Santos for Plaintiffs, Cross-defendants and Appellants.

Wynn Law Group and Richard Wynn for Defendants, Cross-complainants and Respondents All Seasons Transport, Inc. and Kelly Doan.

Law Offices of Tung T. Pham and David M. Do for Defendant, Cross-complainant and Respondent Judie Pham.

Octavio B. Galvez and Octymar, Inc. (Octymar) (Galvez and Octymar together Appellants) raise a variety of issues in their appeal stemming from litigation against All Seasons Transport, Inc. (AST), Kelly Doan, and Judie Pham (AST, Doan, and Pham collectively Respondents). Specifically, Appellants maintain that the superior court erred in considering a motion, demurrer, and opposition filed by AST, a California corporation, while it was suspended by the California Franchise Tax Board. In addition, Appellants claim the court erred in granting motions for nonsuit after the close of Appellants’ case in chief on the following grounds: (1) Galvez was not a party to any contract with AST (dismissing all of Galvez’s claims); (2) the statute of limitations barred Octymar’s claims against AST; and (3) Octymar failed to prove damages (effectively dismissing all of Appellants’ causes of actions seeking damages).

We conclude Appellants’ claims are without merit and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Galvez is a resident of Riverside County, California. Octymar is a California corporation that operated a trucking business. Galvez is the president of Octymar.

AST is a California corporation that operated as a common carrier, transporting goods interstate and brokering business for other trucking companies. Pham was the chief executive officer of AST, and Doan was the corporation’s secretary.

The dispute between the parties in the instant action originated from a series of contracts that, at the very least, were entered into by Octymar and AST. As we discuss below, part of the underlying dispute involves a disagreement regarding who actually is a party to the subject contracts.

The first contract is entitled, “Contractor/Carrier Confidentiality Agreement of Nondisclosure” and is dated September 2, 2009 (Contractor/Carrier Agreement). On the first page of the Contractor/Carrier Agreement, it states that contract is between AST and “Octymar, Inc. Aka Octavio Buelna Galvez.” Before the signature block of the Contractor/Carrier Agreement, the contract states: “In Witness Whereof, the parties hereto have caused this Agreement to be executed in their respective names by their duly authorized officer and Octymar, Inc. has duly signed under hand on this 2nd day of September, 2009.” The Contractor/Carrier Agreement contained a signature line for “All Seasons Transport, Inc. Per: Judie Pham” and “Octymar, Inc. Per Octavio Buelna Galvez.” Both Pham and Galvez signed the contract.

Under the Contractor/Carrier Agreement, AST engaged “Octymar, Inc. Aka Octavio Buelna Galvez” “to perform transportation services” and “Octymar, Inc. Aka Octavio Buelna Galvez” was to provide “all equipment and personal[,]” [sic] “transport exclusively [AST’s] shipments without delay[,]” and “obtain . . . a complete signed delivery receipt . . . for each shipment . . . no later than fourteen (14) days from the date of delivery[.]” In addition, “Octymar, Inc. Aka Octavio Buelna Galvez” was “wholly responsible for performing the contemplated transportation and for all costs and expenses of such transportation” while maintaining insurance for its trucks. Before each shipment, AST was required to submit “Rate Confirmation Sheets” to “Octymar, Inc. Aka Octavio Buelna Galvez” and “pay [an] agreed amount” but that amount was not stated in the agreement.

Apparently, a second agreement was entered into the same day as the Contractor/Carrier Agreement. This agreement was entitled “Owner Operator & Driver Confidentiality Agreement of Nondisclosure” (Driver Agreement). In addition to listing AST and “Octymar, Inc. Aka Octavio Buelna Galvez” as parties, the Driver Agreement included Eugene Hill as the “Driver.” Per the Driver Agreement, AST was to pay “Octymar, Inc. Aka Octavio Buelna Galvez” “at the rate of 10 [percent] per quoted load” and the Driver “at a rate of $0.25 per mile.” Pham signed the Driver Agreement on behalf of AST, and Hill signed it as the Driver. There also was a signature line for “Octavio Buelna Galvez,” which Galvez signed. There was no separate signature line for Octymar.

The day after the Contractor/Carrier Agreement and the Driver Agreement were executed, Galvez sent a letter to Respondents, stating that he was experiencing financial difficulties and asking Respondents to cover certain costs relating to the trucks as well as provide for “the primary expenses of [Galvez’s] house.” The letter was written on letterhead bearing the name “Octymar Trucking, Inc.”

In response to Galvez’s letter, AST sent a proposal to “Octymar, Inc. and/or Octavio Buelna Galvez” (the First September 3rd Proposal). In this proposal, AST would advance “all and upcoming expenses” required for transportation, and in return, “Octymar, Inc. & Octavio Buelna Galvez” would reimburse AST “as agreed upon, on a per load basis, [p]er load, after all fees and expense are deducted from gross,” 25 percent of all net profits “until all owed amount is satisfied.” In addition, as security for the proposal, AST asked Octymar to “sign and hand over original title to” the truck with 8278 as the last four digits of its VIN (Truck 8278). However, Truck 8278 already served as collateral for another loan thus, title to another truck (Truck 7937) was provided to AST. Truck 7937 was located in Arkansas and was inoperable at that time. Pham signed the First September 3rd Proposal on behalf of AST. Galvez signed the proposal on behalf of Octymar.

AST also sent another proposal to “Octymar, Inc. and/or Octavio Buelna Galvez” in response to Galvez’s letter (the Second September 3rd Proposal). The Second September 3rd Proposal contained similar language to the First September 3rd Proposal, but it concerned Truck 8510. Truck 8510 served as security for the proposal. Pham signed the Second September 3rd Proposal on behalf of AST. Galvez signed the proposal on behalf of Octymar.

On September 23, 2009, apparently in response to a letter bearing that same date, AST sent a third proposal to “Octymar, Inc. and/or Octavio Buelna Galvez” (the September 23rd Proposal). Similar to the first two proposals, AST agreed to advance expenses for a specific truck (Truck 8497). However, in the September 23rd Proposal, AST was to receive 100 percent of the net profits per load related to this truck “until all owed amount is fully satisfied.” In addition, no security was required under the proposal. Although Galvez signed the September 23rd Proposal on behalf of Octymar, there is no copy of the proposal in the record that is executed on behalf of AST.

After executing these agreements, problems soon arose between Octymar and AST. On August 22, 2011, a complaint was filed, alleging 11 causes of action against Respondents. In the caption of the complaint, the plaintiff was identified as “Octavio B. Galvez dba Octymar Inc.” The allegations of the complaint began with the following prefatory statement: “Plaintiff Octavio Galvez alleges herein as follows[.]” The first paragraph identified both Galvez and Octymar as separate entities and did not explain how they were connected: “Plaintiff, OCTAVIO GALVEZ is and at all times relevant was a resident of Riverside County, California. OCTYMAR INC. is a California Corporation operating a trucking business in California who contracted with [Respondents] in San Bernardino California.” Although the first paragraph indicated that Octymar entered into the subject contracts and lists Galvez as the plaintiff, throughout the allegations of the complaint, Galvez alleged that promises were made to him and he entered into the three proposals with Respondents. The complaint focused on Respondents’ alleged failure to comply with the three proposals in a variety of ways, including not paying Galvez. There also were allegations about Respondents accusing Galvez of stealing certain trucks.

Galvez obtained a default judgment against Respondents on July 6, 2012. Respondents and Galvez submitted a stipulation to set aside the default judgment. The court agreed to set aside the default judgment and entered an order doing so on August 21, 2012.

On August 29, 2013, Doan and AST answered the complaint. They also filed a cross-complaint against “Octavio Galvez dba Octymar, Inc.” and Octymar alleging, among other causes of action, breach of contract. On October 9, 2013, Pham filed an answer and a cross-complaint against Galvez and Octymar.

Galvez and Octymar answered the two cross-complaints. The parties also stipulated to the filing of a first amended complaint. The first amended complaint was filed on June 23, 2014, alleging 10 causes of action against Respondents. In this complaint, the plaintiff was identified as “Octavio B. Galvez, d/b/a Octymar, Inc.” The first paragraph of the first amended complaint stated: “Plaintiff, OCTAVIO B. GALVEZ was a resident of the County of Riverside and was doing business as OCTYMAR, INC. OCTYMAR, INC. is a California Corporation operating a trucking business in California who contracted with [Respondents] in San Bernardino California. (herein after ‘Plaintiff’).” There is no indication in the record that Respondents filed an answer to the first amended complaint.

Although Respondents did not answer the first amended complaint, they filed a combined motion for summary judgment, claiming that Galvez had no standing to sue, Octymar was an indispensable party, Octymar could not participate in the suit because it was a suspended corporation, and the statute of limitations barred the existing causes of action as to Octymar even if the corporation was added as a plaintiff.

In opposing the motion for summary judgment, Appellants maintained Octymar had been revived and was no longer a suspended corporation, a triable issue of fact existed whether Galvez was a party to any of the subject agreements, Respondents waived any argument that Octymar could not participate in the litigation because it was suspended, Respondents waived any statute of limitations defense, and AST could not file a motion for summary judgment because it had been suspended. Appellants also argued that Galvez had “effectively substituted as a director of Octymar, Inc. as the Plaintiff in this matter” on behalf of Octymar. Finally, Appellants insisted Respondents’ motion was not a motion for summary judgment, but instead, a motion for judgment on the pleadings.

At the hearing on the motion for summary judgment, the superior court explained that it was treating the motion as a motion for judgment on the pleadings. It then granted the motion with leave to amend the complaint, which specifically included the option to add Octymar as a plaintiff.

On December 3, 2014, a second amended complaint was filed, which included Galvez and Octymar as plaintiffs. Again, Respondents were named as defendants, with Appellants adding AST International, Inc. and Jimmy Tran Dang as defendants. In the first two sentences of the second amended complaint, Appellants alleged Galvez “was a resident of the County of Riverside and was doing business as the sole shareholder and sole director of OCTYMAR, INC.” As to Octymar, the second amended complaint stated that it was a “California Corporation in good standing with the Secretary of State and the State Franchise Tax Board.” In addition, Appellants averred that each of them contracted with AST.

The second amended complaint included 10 causes of action: fraud, constructive fraud, breach of contract, open book accounting, money had and received, negligent infliction of emotional distress, intentional interference with economic relations, breach of implied covenant of good faith and fair dealing, violation of business and professions code section 17200 (unfair business practices), and conversation. All causes of actions were alleged against Respondents, and the last two causes of action also were alleged against Dang and AST International, Inc.

Respondents, Dang, and AST International, Inc. demurred to the second amended complaint. Respondents argued all 10 causes were time-barred as to Octymar and that Galvez lacked standing to sue. AST International, Inc. and Dang asserted that the second amended complaint did not state sufficient facts to allege the unfair business practices and conversation claims against them.

In opposing the demurrer, Appellants maintained the statute of limitations defense was waived because Respondents filed cross-complaints against Octymar when it was a suspended corporation. Appellants further argued that Galvez was a proper plaintiff as the “sole director and shareholder of Octymar.” Appellants additionally insisted that AST, as a suspended corporation, could not participate in the litigation until it had been revived. In support of this argument, Appellants requested the superior court take judicial notice of a copy of a printout of a screenshot of the California Secretary of State’s website purporting to show that AST had been suspended as well as judicial notice of an excerpt of AST’s reply in support of its motion for summary judgment wherein AST admitted it had filed the necessary paperwork and paid fees and fines to revive its corporate status.

At the hearing on the demurrer to the second amended complaint, the superior court found that the breach of contract cause of action occurred on December 2009. It observed that the original complaint was filed within the statute of limitations, but Octymar was not a named plaintiff in the original complaint. The court then noted that Doan and AST filed their cross-complaint on October 29, 2013, and Pham field her cross-complaint in October 2013 as well. The court then reasoned that “absent some other tolling,” the only causes of action that were not time-barred were those with four year statutes of limitations. The court further explained:

“Now if AST, Doan and Pham had waited until after December, 2013 to file the cross-complaint, the four-year statute would have run as well, but I think the law is clear that the filing of a cross-complaint against a suspended corporation tolls the statute of limitations on clams that would be the subject of the compulsory cross-complaint, anything that’s related transactionally in some way to, to what’s alleged. So the first amended complaint then, which was filed on June 23rd, 2014, and of course the second amended complaint that we are dealing with, which was December 3rd, 2014, those pleadings both make Octymar, Inc., a plaintiff and they relate back, for purposes of the four-year statute of limitations, to the filing of the cross-complaint. And anything can happen of course until there’s been a revivor, but apparently that’s happened. So there is no statute of limitations bar to anything that is subject to the four-year statute of limitations, but everything else is barred.”

After entertaining oral argument, the court summarized its ruling on the demurrers. It sustained with leave to amend, as to Respondents, the demurrer to the unfair business practices claim. It overruled the demurrers brought against Galvez as a plaintiff, finding that it could not ascertain on the operative complaint that Galvez did not have standing to bring suit. The court also overruled the demurrers as to the breach of contract, open book account, money had and received, and breach of the implied covenant of good faith and fair dealing. However, it sustained the demurrers without leave to amend as to the causes of action for fraud, constructive fraud, negligent infliction of emotional distress, intentional interference with economic relations, and conversation. In addition, the court sustained without leave to amend the demurrers of AST International, Inc. and Dang.

Regarding Appellants’ argument that AST was a suspended corporation and could not participate in the litigation until revived, the court declared that it did not have sufficient evidence of the entity’s corporate status to decide that issue. The court also declined to take judicial notice, as requested by Appellants, of the California Secretary of State’s website, noting “[s]tuff from the Website of the Secretary of State’s Office is not subject to judicial notice.” In addition, the court stated that it could take notice of the existence of a court filing, but it could not take judicial notice of the truth of the matters in the filing, “unless it’s in an order, or something like that[.]”

Before filing a third amended complaint, Appellants brought a motion for reconsideration of the court’s order regarding AST’s demurrer. Appellants focused entirely on AST’s suspended corporate status. In support of their motion, they asked the court to take judicial notice of the ” ‘Certificate of Status’ ” of AST, showing that the Franchise Tax Board suspended AST as of September 4, 2012 and two status reports from the Franchise Tax Board indicting that AST was not in good standing as of March 9, 2015 and March 26, 2015.

AST opposed the motion, arguing that Appellants could not move the court to reconsider the subject order because Appellants presented no new facts or law in support of their motion. (See Code Civ. Proc., § 1008, subd. (a).)

At the hearing on the motion for reconsideration, the court noted that, under Code of Civil Procedure section 1008, subdivision (a), a motion for reconsideration must involve a change in the law or new facts. The court then stated that Appellants had not indicated any change in the law or any new facts. Instead, Appellants offered new evidence, which the court observed was “not new facts.” After hearing oral argument from the parties, the court denied the motion, finding there was “no basis for reconsideration. There are no new facts.”

At the same time Appellants filed their motion for reconsideration, they also submitted a proposed third amended complaint. In submitting the proposed third complaint, Appellants explained: “Should the Motion for Reconsideration be determined in Plaintiff’s favor[,] the Proposed Amended Complaint shall become the acting complaint. Should the Court deny Plaintiff’s Motion for Reconsideration, than [sic] Plaintiff will file a Third Amended Complaint in accordance with said Ruling.” In the record, the word “proposed” on the third amended complaint was crossed out and stamped “filed” by the superior court.

Apparently believing the proposed third amended complaint was the operative complaint, Respondents filed demurrers. Appellants opposed the demurrers, arguing, among other things, that they never intended to file the third amended complaint unless the court granted their motion for reconsideration. Appellants also attached a proposed fourth amended complaint to their opposition.

At the hearing on the demurrers to the third amended complaint, the court noted there might have been “some confusion that arose from the Court’s ruling on the Demurrer to the 2nd amended complaint.” The court then clarified its previous order on the demurrers to the second amended complaint. After which, it sustained in part and overruled in part the demurrers to third amended complaint. However, the substance of the court’s order on the demurrers to the third amended complaint are not integral here because Appellants filed a fourth amended complaint on August 19, 2015.

The fourth amended complaint listed Galvez and Octymar as plaintiffs. It included the following causes of action: (1) breach of contract; (2) open book accounting; (3) money had and received; (4) breach of implied covenant of good faith and fair dealing; and (5) unfair business practices. AST, Pham, and Doan were the named defendants.

Per the fourth amended complaint, Galvez alleged that Respondents approached him about helping him operate Octymar. He claimed Respondents “held themselves out to be a reputable trucking business with many connections.” Further, Doan and Pham represented that they would broker Octymar’s trucks and increase its business and profits.

In September 2009, Appellants and Respondents entered into five written contracts (the Contractor/Carrier Agreement, the Driver Agreement, the First September 3rd Proposal, the Second September 3rd Proposal, and the September 23rd Proposal). Appellants alleged Respondents breached these agreements by failing: (1) “to tender any profits to” Appellants; (2) “to provide any documentation of each load transported by” Octymar’s trucks per the contracts; and (3) “to return the titles” to the subject trucks that were transferred as security under the three September proposals. These alleged breaches also formed the basis for the other causes of action alleged against Respondents. In addition, Appellants alleged that Respondents reported Truck 7937 stolen, but knew that Galvez possessed that truck. Further, Respondents received an insurance payment for Truck 7937 based on their false claim that it was stolen. Appellants alleged they were entitled to “compensatory, special, and general damages according to proof” as well as exemplary damages and restitution. Although no specific amount of total damages was alleged, Appellants averred that Respondents were indebted to them for a sum exceeding $240,000.

Respondents filed answers to the fourth amended complaint, listing several affirmative defenses, including that the claims were barred by the statute of limitations. The court subsequently set a trial date of May 16, 2016.

Less than two weeks before trial, Appellants applied ex parte to file a fifth amended complaint, alleging two new causes of action for slander per se and intentional infliction of emotional distress based on an allegedly false police report filed by Respondents. The court denied the ex parte application.

A jury trial commenced on May 18, 2016. The parties deemed the fourth amended complaint as the operative complaint, and Pham’s cross-complaint was dismissed because it was duplicative of AST and Doan’s cross-complaint.

At trial, Appellants called four witnesses: Galvez, Ignacio Gutierrez (an expert witness), Pham, and Doan. After the close of Appellants’ case, Respondents moved for nonsuits against all claims alleged by Galvez, all claims alleged by Octymar, all claims against Doan and Pham, and the unfair business practices claim. Specifically, they argued that a nonsuit was appropriate as to all of Galvez’s claims because he did not show he was a party to any contract with AST. Respondents maintained that the subject contracts were only between Octymar and AST. During argument regarding the nonsuit as to Galvez’s claims, Appellants’ trial counsel offered to remove Galvez as a plaintiff in the fourth amended complaint if Respondents would agree to remove Doan and Pham from the operative cross-complaint and the trial would continue between Octymar and AST. Respondents declined the offer and proceeded with the nonsuit against Galvez. At that point, the court asked if there was any further argument, which led to the following exchange between Appellants’ trial counsel and the court:

“[Appellants’ Trial Counsel]: No. Just reiterating that my client, based on his limited English when he entered into the agreement, thought he was entering into the agreement both as Octymar, Inc., and as himself individually.

“THE COURT: That’s not what the contracts say. I’m granting the motion. The claim’s [sic] asserted by Mr. Galvez as an individual. I’m granting the motion for a nonsuit.”

Respondents then moved for a nonsuit as to all claims against Doan and Pham. Respondents argued that there was “no evidence of any privity to any of the six contract[s] that are in dispute. And also, that [Appellants] have not shown any kind of piercing of the corporate veil.”

Appellants’ trial counsel responded, “As to the piercing of the corporate veil, based on their bank accounts, it looks like they were taking money in and out. They were commingling money that might have been their personal assets in the business account.” The court observed that it did not see any evidence of commingling of money and further stated such commingling would not be sufficient to pierce the corporate veil. It therefore granted the motion for nonsuit as to all claims against Pham and Doan.

The court also granted AST’s motion for nonsuit as to the unfair business practices claim against it. The court agreed there was no evidence presented of any deceptive or illegal practice on behalf of AST.

AST then argued for a nonsuit as to all of Octymar’s claims against AST on two grounds: statute of limitations and failure to prove damages. Regarding the statute of limitations argument, the court assumed the breach of contract cause of action arose in January 2010. However, the court noted that Octymar did not become a plaintiff in this litigation until December 3, 2014, after the four year statute of limitations expired. Appellants relied on two cases, (Olson v. Lockheed Aircraft Corp. (1965) 237 Cal.App.2d 737 (Olson); Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834 (Electronic Equipment)), to argue that the statute of limitations had been tolled and/or waived by the filing of the cross-complaint against Octymar.

During a recess, the court reviewed Olson and Electronic Equipment as well as “the papers that were filed in support of and in opposition to . . . the motion for summary judgment that was treated as a motion for judgment on the pleadings.” The court disagreed with Appellants’ counsel about the holding of Olson, supra, 237 Cal.App.2d 737, stating that the holding was “not as broad as [Appellants] suggest.” The court further found that Olson was distinguishable from the instant matter.

The court also concluded that Electronic Equipment, supra, 122 Cal.App.3d 834 did not have “any direct application to the issue before” the court. The court then explained that it was assuming that Octymar’s cause of action against AST accrued on January 31, 2010, and would expire four years later. The court noted that AST named Octymar as a cross-defendant on August 29, 2013, within the four year period. The court found that AST did not waive any statute of limitations argument by filing the cross-complaint.

“Nevertheless, for the sake of discussion,” the court assumed the filing of the cross-complaint tolled the statute of limitations. The court noted that Octymar answered the cross-complaint on October 1, 2013, and then observed “the only reasonable conclusion is that the statute of limitations starts to run again on the date that Octymar, Inc. file[d] its answer.” So, the court found that Octymar had five months from the date it filed its answer to allege any claims against AST. However, the second amended complaint, adding Octymar as a plaintiff, was not filed until December 3, 2014. Thus, the court found that Octymar’s claims were barred by the statute of limitations.

Finally, the court addressed the last motion for nonsuit, which argued that Octymar failed to prove damages. The court thoroughly discussed the evidence in Appellants’ case in chief and allowed Appellants’ trial counsel to point out where Appellants had provided any evidence of damages. Appellants’ trial counsel conceded that Galvez was not “able to articulate” a dollar value for damages. Counsel also admitted that Appellants did not “bring in any testimony to show what damages . . . [were] actually owed.” The court then granted the motion for nonsuit based on a failure to prove damages.

The trial resumed as to Respondents’ claims against Appellants with testimony from Doan, Pham, Galvez, and Ruben Martinez. At the close of Respondents’ case, Appellants moved for a nonsuit. The court granted the motion as to the causes of action for intentional torts, fraud, and interference with prospective business relations. The jury ultimately found Octymar liable for breach of contract and awarded AST damages in the amount of $34,520. It also found Galvez liable to AST for conversion in the amount of $10,012.

Appellants timely appealed.

DISCUSSION

I

CLAIMS RELATING TO THE CORPORATE STATUS OF AST

A. Appellants’ Contentions

Appellants contend the superior court erred in considering a motion, demurrer, and opposition filed by AST while it was a suspended corporation. Further, they claim the court improperly granted AST relief while it was suspended. Although it appears that AST was participating in the litigation while suspended, it was revived during the litigation thus validating its previous litigation activities. (See Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1553 (Center for Self-Improvement).) Additionally, Appellants did not offer sufficient evidence proving AST’s suspended status. Accordingly, as we explain below, we conclude Appellants’ claims lack merit.

B. Background

AST is a California corporation. Galvez sued AST, among other defendants, on August 22, 2011. Galvez filed a first amended complaint on June 23, 2014. AST, along with Pham and Doan, filed a joint motion for summary judgment. In opposing the motion for summary judgment, Galvez argued that AST was a suspended corporation. In the reply in support of the motion for summary judgment, AST’s counsel informed the court that AST was in the process of winding down its business affairs when it became aware that Galvez was suing it. Thus, it “filed the appropriate tax returns, paid its fees and fines, and filed an Application for a Certificate of Revivor on October 11, 2014[.]” AST also maintained that the court could proceed with the motion for summary judgment as to Doan and Pham, but the legal proceedings against AST should be stayed and AST could revive its motion for summary judgment after its corporate status was revived (which it believed would occur in a couple of weeks).

The court considered the motion for summary judgment as a motion for judgment on the pleadings, which it granted but allowed Galvez to file an amended complaint and add Octymar as a plaintiff. In doing so, the court did not dismiss any of the causes of action alleged in the first amended complaint or instruct Galvez that he could not allege any specific cause of action in a second amended complaint.

On December 3, 2014, Appellants filed a second amended complaint, alleging 10 causes of action against AST and other individual defendants related to AST, including Pham and Doan. All named defendants, including AST, demurred to the second amended complaint. In opposing the demurrers, among other arguments, Appellants asserted that AST remained a suspended corporation and could not prosecute or defend any action in a California court. In support of their position, Appellants requested that the superior court take judicial notice of: (1) a printout of a screenshot from the California’s Secretary of State website business portal; and (2) page eight of Respondents’ reply memorandum of points and authorities in support of the motion for summary judgment. The court declined to take judicial notice and sustained in part and overruled in part the various demurrers. Specifically, the demurrers were sustained without leave to amend as to Octymar’s claims for fraud, constructive fraud, negligent infliction of emotional distress, intentional interference with economic relations, and conversion. The demurrers were sustained with leave to amend the unfair business practices claim. And the demurrers were overruled as to the causes of action for breach contract, open book accounting, money had and received, and breach of the implied covenant of good faith and fair dealing.

On March 27, 2015, shortly after notice of the court’s order on the demurrers was served, Appellants filed a motion for reconsideration. Again, Appellants argued that AST was suspended and could not participate in the litigation. To this end, they asked the court to take judicial notice of: (1) a “Certificate of Status” of AST received from the California Secretary of State showing that the Franchise Tax Board had suspended AST on September 4, 2012 and (2) status reports from the Franchise Tax Board showing AST was not in good standing on March 9 and 26, 2015.

The court denied the motion for reconsideration because Appellants had not offered any new facts. It did not grant the request for judicial notice.

C. Analysis

A corporation that has had its powers suspended “lacks the legal capacity to prosecute or defend a civil action during its suspension.” (Sade Shoe Co. v. Oschin & Snyder (1990) 217 Cal.App.3d 1509, 1512 (Sade Shoe).) “The ‘corporate powers, rights and privileges’ of any domestic corporate taxpayer may be suspended for failure to pay certain taxes and penalties. (Rev. & Tax. Code, § 23301.) This means the suspended corporation cannot sell, transfer or exchange real property in California, and contracts entered into during the time of suspension are voidable . . . through legal action. [Citations.] . . . Nor, during the period of suspension, may the corporation prosecute or defend an action, seek a writ of mandate, appeal from an adverse judgment, or renew a judgment obtained before suspension.” (Center for Self-Improvement, supra, 173 Cal.App.4th at p. 1552.)

On the record before us, it appears that AST was a suspended corporation and should not have been participating in the litigation by filing motions, demurrers, or oppositions. (See Sade Shoe, supra, 217 Cal.App.3d at p. 1512.) For example, AST’s counsel admitted that AST was a suspended corporation in its reply memorandum of points and authorities in support of its motion for summary judgment. Consequently, it should not have been participating in the litigation at that point. That said, there were two other defendants (Pham and Doan) who filed motions for summary judgment as well. The court treated these motions as motions for judgment on the pleadings, granted the motions, and allowed Galvez to file an amended complaint that would include Octymar. In granting the motions for judgment on the pleadings, AST did not obtain any relief specific to it. To proceed with the litigation, Galvez filed a second amended complaint that again named AST, among others, as a defendant. Absent the filing of a new case, Galvez could not have proceeded against AST on the first amended complaint and litigated against Pham and Doan under a second amended complaint with different allegations and an additional plaintiff. As such, although AST should not have been permitted to file a motion for summary judgment aimed at the first amended complaint, Galvez suffered no prejudice by it doing so.

Next, Appellants claim AST was a suspended corporation at the time it demurred to the second amended complaint, and accordingly, the superior court erred in ruling on AST’s demurrer. Although we agree that AST could not participate in the litigation if it was suspended, there was no evidence before the superior court, at the time it considered the demurrers to the second amended complaint, that AST was suspended. Appellants asked the court to take judicial notice of a printout of a screenshot from the California Secretary of State’s website and a page of AST’s reply memorandum of points and authorities in support of its motion for summary judgment. The court declined to do so. Here, Appellants insist that “[n]o reasonable judge would not have taken notice of AST’s lack of capacity at the demurrer stage[.]” We disagree.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. (Post v. Prati (1979) 90 Cal.App.3d 626, 633.) In the instant matter, Appellants claim the court could have taken judicial notice of the printout under Evidence Code section 452, subdivision (c) or subdivision (h). The argument that the court could have taken judicial notice does not establish that it should have done so.

Evidence Code section 452, subdivision (c) allows for permissive judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, § 452, subd. (c).) However, Appellants’ request for judicial notice was not directed at an official act of the executive branch of California, but instead, at a printout of a screenshot of a website that Appellants claim indicates an official act of the executive. Yet, Appellants do not point us to any authority establishing judicial notice of such a printout is proper. In fact, California law suggests a court may not take judicial notice of the factual content of a website. (See Searles Valley Minerals Operations, Inc. v. State Board of Equalization (2008) 160 Cal.App.4th 514, 519.) And the superior court below, in ruling on the request for judicial notice, observed that the Secretary of State’s website warns “this may not be accurate and you shouldn’t rely on it.” Indeed, the printout of which Appellants requested judicial notice cautions: “The data provided is not a complete or certified record of an entity.”

In addition, the printout of a screenshot of the Secretary of State’s website was not judicially noticeable under subdivision (h) of Evidence Code section 452. That subdivision allows for judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) Here, Appellants tautologically argue that the fact AST was suspended was not reasonably subject to dispute because it was suspended. This argument does not somehow make the purported facts contained in a printout of a website’s screenshot judicially noticeable.

Also, the superior court correctly declined to take judicial notice of page eight of AST’s reply memorandum of points and authorities in support of the motion for summary judgment. Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375-1376; StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 456, fn. 9.) At best, page eight of the reply established that at the time of its filing (October 16, 2014), the Franchise Tax Board had suspended AST, but AST had taken the necessary measures to revive its corporate status and expected a certificate of revivor by the end of October 2014. Page eight of the reply, however, sheds no light on whether AST remained a suspended corporation when AST filed its demurrer to the second amended complaint on January 26, 2015. Therefore, the superior court did not err in declining to take judicial notice of page eight of the reply.

Finally, Appellants argue that superior court erred when it allowed AST to continue to participate in the litigation although Appellants subsequently submitted judicially noticeable documents showing AST was suspended. Appellants submitted this evidence in support of their motion for reconsideration of the order on AST’s demurrer to the second amended complaint.

Appellants brought a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a) which provides:

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

The evidence consisted of a certificate of status from the California Secretary of State indicating that AST had been suspended and two entity status letters (one dated March 9, 2015 and the other March 26, 2015). Appellants requested the superior court take judicial notice of these documents. The court did not take judicial notice and denied Appellants’ motion for reconsideration. In doing so, the court noted that Code of Civil Procedure section 1008, subdivision (a) required the moving party offer new law or new facts in support of the motion. The court then observed that Appellants did not have any new facts, just new evidence. We agree. The underlying fact (AST’s suspended status) was not new. Appellants argued this fact in opposing AST’s demurrer. They repeated the same argument in support of their motion for reconsideration. The superior court thus properly denied the motion and declined to take judicial notice of the subject documents. There was no error.

Also, we note that although the superior court did not grant Appellants’ motion for reconsideration, it explicitly stated the denial of the motion was “without prejudice to raise this issue in some other context.” Appellants acted on the court’s suggestion, filing motions for judgment on the pleadings directed at AST’s answer and its cross-complaint based on Appellants’ claim that AST remained a suspended corporation. However, in opposition to these motions, AST submitted a certificate of revivor, showing that AST was revived as of June 3, 2015. And there is no indication in the record that the superior court ruled on these two motions.

In short, we conclude that Appellants have not shown any reversible error based on the superior court considering AST’s motion for summary judgment, demurrer, and opposition to the motion for reconsideration while AST was a suspended corporation. Further, it is undisputed that AST obtained its revivor during the course of the litigation. “Subsequent corporate revivor retroactively validates actions in the course of litigation such as obtaining an attachment [citation]; applying for and obtaining an extension of a use permit [citation]; making and opposing of motions and engaging in discovery [citation]; and taking an appeal [citation]. In sum, the revival of corporate powers enables the previously suspended party to proceed with the prosecution or defense of the action and validates a judgment obtained during suspension. [Citations.]” (Center for Self-Improvement, supra, 173 Cal.App.4th at p. 1553.)

Appellants nevertheless complain that the revivor does not matter here because “the trial court crippled Appellants’ case[] [while] AST was still a suspended entity.” But for this bald conclusion, Appellants do not explain how their case was crippled. Moreover, they gloss over the fact that, in addition to AST, Pham and Doan filed demurrers and obtained the same relief as did AST. Appellants do not illuminate why their unsuccessful arguments against the demurrers of Pham and Doan would have been successful against AST (absent its suspended status). Simply put, Appellants have not shown why AST’s revivor did not retroactively validate its previous litigation activities that were undertaken while it was suspended. (See Center for Self-Improvement, supra, 173 Cal.App.4th at p. 1553; Diverco Constructors v. Wilstein (1970) 4 Cal.App.3d 6, 12.)

II

THE MOTIONS FOR NONSUIT

A. Appellants’ Contentions

At the close of Appellants’ case in chief during trial, the superior court granted several of Respondents’ motions for nonsuit. Here, Appellants challenge three of the grounds relied on by the superior court to grant the motions. First, they claim the court wrongly determined that Galvez was not party to any contract with AST. Second, Appellants claim the court incorrectly concluded that the statute of limitations barred Octymar’s claims. Finally, Appellants insist the court erred in determining that they had not proven damages. We agree with the superior court that Appellants failed to prove damages at trial; thus, the granting of a nonsuit was proper. Because a nonsuit was proper as to all the causes of action seeking damages, for this reason alone, we do not reach the other nonsuit related issues raised by Appellants.

B. Background

Appellants proceeded to trial against Respondents, seeking damages based on causes of action for breach of contract, open book accounting, money had and received, and breach of the implied covenant of good faith and fair dealing. Galvez testified at trial, but he did not state an amount of damages he believed he or Octymar was owed by Respondents. Indeed, when questioned by the trial court, Appellants’ trial counsel conceded that Galvez did not testify regarding the amount of damages owed.

Appellants also called Gutierrez as their expert witness. Gutierrez had at least 30 years of experience in the transportation industry and testified about what he “generally [paid] owner-operators by mile.” Gutierrez explained that the amount paid depended on the type of driver and route (local, regional, or across the continental United States). He also testified about what his company paid drivers as well as the average rate paid to regional drivers. In addition, Gutierrez provided estimates for the costs of monthly maintenance for vehicles. Gutierrez did not testify as to the amount of damages owed Galvez or Octymar.

Appellants also called Pham and Doan during their case in chief. Not surprisingly, neither witness testified about any damages Appellants were owed.

After the close of Appellants’ case, Respondents moved for a nonsuit on multiple grounds, including Appellants’ alleged failure to prove damages. Consequently, the trial court asked Appellants’ counsel, “[w]hat evidence of damages [was] there?” The court’s question elicited the following exchange between Appellants’ counsel and the court:

“[APPELLANT’S TRIAL COUNSEL]: Well, loss of the value of the business, when the trucks were in [AST’s] possession, [AST] took—[¶] [question by the trial court] [¶] All Seasons Transport took loads without first seeking authorization from our client. They took loads where they made their 25 percent. They made their 10 percent. My client ended up being negative on several of those trips. That if they had—if they had asked his permission and they had run loads according to industry standards, my client would have made much more money. And they were unjustly enriched.

“THE COURT: Who testified about that?

“[APPELLANTS’ TRIAL COUNSEL]: Well, the expert testified as to what the standards would be, and then my client, I believe, did testify as to that the value of what he thought he was supposed to get.

“THE COURT: What did he say about that? I never heard a dollar figure from Mr. Galvez.

“[APPELLANTS’ TRIAL COUNSEL]: Actually, your Honor, I would agree that there was—our client didn’t—I attempted to bring in a dollar value. He didn’t—he wasn’t able to articulate one.

“THE COURT: All right. And without a dollar figure are there damages?

“[APPELLANTS’ TRIAL COUNSEL]: Well, unjust enrichment. The value of his trucks, they used his trucks when they didn’t—when it was a security interest.”

The court then took a break in the proceedings. After the break, the court thoroughly explained its concerns about the lack of any evidence of damages:

“[THE COURT]: ” . . . I don’t know what the damages are. Mr. Galvez didn’t quantify any damage in any way. What he said in his testimony is that he never received any money from All Seasons Transport. Now, that testimony was contradicted by the testimony of Judie Pham and Kelly Doan, but you know, the jury could believe Mr. Galvez and they could disbelieve Kelly Doan and Judy Pham.

“So there’s evidence there, but all that evidence is, is that Mr. Galvez or his company did not receive any money. It doesn’t establish that he was entitled to receive any money, because there’s no question, both sides agree that certain expenses were to be deducted from any revenue that was generated by these trucks.

“I’m frankly confused about what deductions were proper. Counsel will remember that outside the presence of the jury I spent a few minutes summarizing how I thought the transaction worked. The testimony of Ms. Doan earlier this morning seemed to contradict my understanding, and I seem to be mistaken about whether payments to drivers came off the top or whether payments to drivers came out of the 10 percent that All Seasons Transport took.

“Similarly, I’m a little confused about what the testimony about diesel was, but I don’t think it matters. Because the only accounting that was provided by anybody was the accounting provided by All Seasons Transport, which shows not that money is owed to Mr. Galvez, but that Mr. Galvez—excuse me, money was owed to Octymar, Inc., but rather, the reverse, that Octymar, Inc., owes money.

“There was an expert witness who testified. All he testified about was custom and practice in the industry. I’m not sure what the relevance of his testimony was at all, since custom and practice in the industry doesn’t seem to be controlling anything here. This is—the conduct of the parties was controlled by the terms of the contract. But be that as it may, he didn’t say anything about money that was owed to Octymar, Inc., and Mr. Galvez didn’t say anything about money that was owed to him. All he said was he didn’t receive any money. The testimony of Kelly Doan and Judie Pham, which the Court is required to consider, also didn’t establish Mr. Galvez’ or Octymar, Inc.’s claims.

“So I just don’t know what the cause of action is. Octymar, Inc., has not proven any damages. The only testimony, unless there’s something that I missed and I’d like you to point it out to me, [counsel], is that Mr. Galvez said that his company did not receive any money. There wasn’t any testimony as to how it was that Octymar, Inc., was entitled to receive any money after deductions or expenses. [¶] So where are we?

“[APPELLANTS’ TRIAL COUNSEL]: As far as damages, I would agree with the court that we did not bring in any testimony to show what damages he actually owed. The testimony we introduced is that we believed that the accounting wasn’t appropriate and that—

“THE COURT: Is there a witness that testified that there was something wrong with the accounting?

“[APPELLANTS’ TRIAL COUNSEL]: That would have been when I put Mr. Galvez on the stand but—

“THE COURT: Okay. All right. Thank you. [¶] Motion for nonsuit granted.”

C. Analysis

“A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff’s evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.] A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor. [Citations.] [¶] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the [plaintiff’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference [that] may be drawn from the evidence in [plaintiff’s] favor. . . .” ‘ ” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839 (Carson); accord, O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 347; Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 967.)

On appeal from a judgment following the granting of a nonsuit, the reviewing court similarly views the evidence most favorably to the plaintiff and most strongly against the defendant and resolves all presumptions, inferences, and doubts in the plaintiff’s favor. A nonsuit may only be upheld on appeal when, drawing all reasonable inferences in favor of the nonmoving party, the court determines the moving party was entitled to resolution of the issue, claim or action in his or her favor as a matter of law. (Carson, supra, 36 Cal.3d at p. 839; Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 664.)

At trial, Appellants were seeking damages arising out of alleged breaches of the Contractor/Carrier Agreement, the Driver Agreement, the First September 3rd Proposal, the Second September 3rd Proposal, and the September 23rd Proposal. The basic object of damages is compensation, and in contract law, the theory is that the party injured by a breach should receive as nearly as possible the equivalent of the benefits of performance. The law aims to put the injured party in as good a position as he or she would have been in had performance been rendered as promised. (Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1191.) However, contract damages that are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 473.)

Here, we agree with the trial court that Appellants offered no evidence of the amount of damages owed. Galvez testified that AST never paid Octymar any money under any of the subject contracts. Later, he contradicted himself and admitted that he did receive money from AST. However, Galvez never testified about the amount he was owed from the alleged breaches. In fact, Appellants’ trial counsel conceded this shortcoming when asked by the court what evidence of damages was presented during Appellants’ case in chief.

In addition, Appellants do not point to any evidence in the record where they offered an accounting under any of the contracts or otherwise explained what revenue was generated under the contracts. Indeed, the only accounting regarding the subject contracts presented at trial showed that Octymar owed AST money. Appellants have no explanation for this lack of evidence in support of their damages claim. Moreover, they do not explain how the accounting that was presented at trial was flawed and/or supported their claim for damages.

On appeal, Appellants insist the testimony of their expert witness, Gutierrez, established damages. Not so. Gutierrez was not a damages expert. Appellants do not point us to any expert testimony opining on the amount of damages Respondents owed Appellants. At most, Gutierrez discussed what his company paid drivers, payment of drivers in general, different types of drivers and/or routes, and general maintenance costs of trucks. Simply put, Gutierrez offered no opinion about what Appellants were owed under the subject contracts.

Despite the absence of evidence produced at trial, Appellants now argue the jury could have used Gutierrez’s testimony regarding industry standards as a baseline to calculate damages. Yet, even a cursory review of Appellants’ argument shows that Appellants are applying Gutierrez’s industry standard figures to assumptions they made in their trial brief regarding the number of miles the subject trucks traveled combined with an estimated gross income based on the assumed mileage. And Appellants do not show where in the record the presumed miles traveled and gross income assumed in the trial brief were proven by evidence offered at trial. Accordingly, the damages Appellants claim the evidence adduced at trial could have proved is not actually based on evidence at all, but largely on hypothetical numbers in the trial brief. The damages Appellants claim here thus are entirely speculative and not a basis for recovery. (See Scott v. Pacific Gas & Electric Co., supra, 11 Cal.4th at p. 473.)

“A fundamental principle of appellate practice is that an appellant ‘ “must affirmatively show error by an adequate record. . . . Error is never presumed. . . . ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .’ [Citation.]” [Citations.]’ ” (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533; see State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Here, Appellants are challenging the trial court’s granting of a nonsuit on the grounds that they did not prove damages at trial. To be successful, Appellants need to point to evidence produced at trial that actually provides a basis for an amount of damages. (See Carson, supra, 36 Cal.3d at pp. 838-839.) They have failed to do. Thus, the trial court did not err in granting a motion for nonsuit on the grounds that Appellants failed to prove damages at trial.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.