Sababin v. Sun Healthcare Group

Filed 8/15/07 Sababin v. Sun Healthcare Group CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

David L. Minning, Judge. Affirmed.

Maher, Guiley & Maher, Steven R. Maher, William M. Artigliere; Esner, Chang & Ellis and Andrew N. Chang for Plaintiffs and Appellants.

Giovanniello & Michels, Alexander F. Giovanniello, Helen A. Michels and Karen A. Bocker for Defendants and Respondents.

_________________________

Appellants Priscilla Sababin,[1]Carmen Escobedo, Tony Mesa and Dean Mesa are the heirs (heirs) of Arlene Renteria (Renteria). Renteria suffered from Huntingtons Chorea, a degenerative disease that, among other things, created a risk that her skin would deteriorate. While in the care of Covina Rehabilitation Center doing business as Sunbridge Care and Rehabilitation for Covina (Covina), she allegedly developed a dangerous skin condition and subsequent infection that led to her death. The heirs sued, among others, respondents Regency Health Services, Inc. (Regency) and Sun Healthcare Group, Inc. (Sun) and alleged that they both participated in running Covina. Regency and Sun obtained summary judgment based on evidence that Sun owns stock in Regency and Regency owns stock in Covina but that they have nothing to do with Covinas operations. On appeal, the heirs contend that there are triable issues as to whether Regency and Sun can be held liable for Covinas conduct on an alter ego theory, and as to whether they participated in Renterias care.

We find no error and affirm.

FACTS

The second amended complaint

The operative pleading, the second amended complaint (complaint), alleged the following. Regency, Sun and Sunbridge Healthcare Corporation (Sunbridge) operate Covina and provide long-term care. These three entities implemented a plan to increase profits at the expense of residents such as Renteria by staffing Covina with an insufficient number of personnel, many of whom were not trained or qualified to care for the elderly or dependent adults. As a result, Covinas residents were neglected and physically abused. In doing the things alleged, the defendants acted as the agents and alter egos of their codefendants and did so with their codefendants consent, approval and ratification. Specifically, Regency and Sun willfully permitted Renteria to suffer substantial physical pain and mental suffering.

Based on the foregoing allegations, Regency and Sun were named as defendants in nine causes of action which included willful misconduct, negligence, breach of contract, elder abuse, tort per se, fraud by misrepresentation, fraud by concealment, wrongful death and unfair business practices.

Regencys and Suns motions for summary judgment

According to Regency, it is a holding company with no employees. It owns shares in Covina. Regency argued that there is no evidence that it was involved in Covinas day-to-day operations, or that there was any basis for finding that it was directly liable for Renterias injuries. Further, it argued that there was no evidence to support a finding of alter ego liability.

Sun argued that it is a shareholder of Regency and has no responsibility for Covinas day-to-day operations. Also, Sun asserted that the heirs had no evidence that it ratified Covinas conduct.

In opposition, the heirs maintained that there are triable issues as to Regency and Sun because there is evidence that Sun purchased Regency in October of 1997 and Regency operated 111 long-term care facilities in the United States. As well, Regency, Sunbridge and Covina were named defendants in a case that resulted in a permanent injunction and final judgment that prohibited them violating a long list of federal and state regulations. They were, for example, prohibited from mentally or physically abusing patients. Also, they were required to develop comprehensive care plans and provide sufficient staff. The heirs disputed that Regency is merely a holding company. They claimed that Sun and Sunbridge, through Regency, made changes to Sunbridges policies and procedures manual and notified Covina through its summary of manual update changes. Based on this evidence, the heirs argued that Regency, and therefore Sun, were subject to alter ego liability. Finally, the heirs contended that Regency and Sun ratified the mistreatment of Renteria because Covinas administrator, Susan Toland (Toland), faxed two reports regarding Renterias situation to Regency and Suns corporate headquarters but none of Covinas employees were ever fired due to Renterias lack of care and treatment.

The rulings

The trial courts order granting summary judgment for Regency stated that there is no triable issue of material fact and . . . this moving party is entitled to summary judgment as a matter of law because [Regency] was a shareholder of [Covina] at all times pertinent to the allegations in the complaint. [Regency] did not have responsibility for or undertake the day-to-day operations of [Covina]. [Regency] is merely a holding company and has no employees; it does not operate and/or manage skilled nursing facilities. [The heirs] have no admissible evidence sufficient to justify piercing the corporate veil.

Similarly, the trial court granted summary judgment in favor of Sun. As stated in the order, the trial court found that there is no triable issue of material fact . . . because [Sun] was merely a shareholder of [Regency,] which was a shareholder of [Covina] at all times pertinent to the allegations of the complaint. [Regency] did not have responsibility for or undertake the day-to-day operations of [Covina]. [Regency] is merely a holding company and has no employees; it does not operate and/or manage skilled nursing facilities. [The heirs] have no admissible evidence sufficient to justify piercing the corporate veil.

This timely appeal followed.

APPEALABILITY

The trial court did not enter judgment in favor of Regency and Sun even though the orders granting summary judgment dictated that judgment be entered. This potentially deprives us of jurisdiction. (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 5.) But we can correct this defect by ordering the trial courts orders consolidated and then by amending the consolidated order to make it effective as a judgment. (Id. at p. 6.) We direct the amended consolidated order granting summary judgment to declare that judgment is entered nunc pro tunc on the complaint in favor of Regency and Sun such that the heirs shall take nothing, and their action against Regency and Sun is dismissed.

STANDARD OF REVIEW

We review summary judgment de novo (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476), and in doing so we follow a three-step analysis. We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents claim and justify a judgment in the movants favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.] (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

DISCUSSION

The heirs assign error to the trial courts orders on three grounds: (1) Regency and Sun did not shift the burden of proof regarding alter ego liability; (2) there is evidence establishing that Regency and Sun have alter ego liability; and (3) there are triable issues of fact regarding whether Regency and Sun affirmatively undertook and then breached a duty to provide Renteria with a safe and healthy care facility. As we shall explain, these contentions lack merit.

1. Alter ego liability.

The heirs argument that Regency did not shift the burden of proof as to alter ego puts the cart before the horse. A review of the complaint reveals that alter ego liability was not properly at issue. Further, the evidence adverted to by the heirs on appeal does not satisfy alter ego criteria.

a. The applicable law.

Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations. [Citations.] A corporate identity may be disregardedthe corporate veil piercedwhere an abuse of the corporate privilege justifies holding the equitable ownership of a corporation liable for the actions of the corporation. [Citation.] Under the alter ego doctrine, then, when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporations acts to be those of the persons or organizations actually controlling the corporation, in most instances the equitable owners. [Citations.] The alter ego doctrine prevents individuals or other corporations from misusing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds. [] In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. [Citation.] Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other. [Citations.] Other factors which have been described in the case law include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. [Citations.] No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied. [Citation.] Alter ego is an extreme remedy, sparingly used. [Citation.] (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.)

b. There is no basis for piercing the corporate veil as to Regency.

The heirs rely on RLH Industries, Inc. v. SBC Communications, Inc. (2005) 133 Cal.App.4th 1277 (RLH) [holding that a defendants failure to negate the alter ego liability allegations regarding all its subsidiaries compelled reversal of summary judgment][2]to establish that Regency failed to shift the burden of proof regarding alter ego liability. In the alternative, the heirs contend that they offered sufficient evidence to create a triable issue.

As a threshold matter, we must turn to the complaint.

For purposes of a summary judgment motion, the issues that demand the moving partys attention are, with one exception, delimited by the allegations within the four corners of the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381382.) The rule bends only when there is no objection to a pleading defect and the pleading defect is effectively cured by admissible evidence proffered in the summary judgment papers. (Id. at p. 382.) But what is the moving partys burden if a portion of the pleading is defective? In such a case, the moving party need not address a missing element or, obviously, respond to assertions which are unintelligible or make out no recognizable legal claim. (Ibid.)

The problem for the heirs is that, at least initially, Regency was not obligated to negate the alter ego allegation because the complaint does not properly delimit alter ego as an issue. In other words, the complaint does not make out a cognizable legal claim for alter ego liability. There was no allegation that Regency used the corporate form to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose. Nor does the complaint allege that there was a unity of interest and ownership between Regency and Covina such that the separate personalities of the corporation and the shareholder does not exist. For example, the pleading does not aver that the entities commingled funds, or that Regency held itself out as being liable for Covinas debts, or that Covina is a mere shell or conduit of Regency. Moreover, the complaint does not allege that there will be an inequitable result if the corporate veil is not pierced. Based on this, the question of whether Regency shifted the burden is, at the moment, a moot issue.

Nonetheless, the procedural posture of the case could well have changed if the missing elements were supplied by the parties evidence, and if Regency did not object to the pleading deficiency.

But Regencys evidence did not ameliorate the deficiency. To show that Regency had no liability for Renterias pain and suffering, Michael T. Berg (Berg), the secretary of Regency, declared that at all relevant times Covina operated itself. Also Regency had no responsibility for Covinas day-to-day operations. Additionally, he declared that Regency is merely a holding company and has no employees; it does not operate or manage skilled nursing facilities.

Nor did the heirs evidence save the day.

In their appellate brief, the heirs advert to the following: (1) a form purporting to be from Sunbridge which required its recipient to review a policy and procedures manual and indicate acceptance; (2) a document purporting to be from Sunbridge which provided its recipient with a summary of changes to the infection control policy and procedure manual; (3) a form purporting to be from Sunbridge which required its recipient to indicate, inter alia, receipt of an infection control policy and procedure manual; (4) a form purporting to be from Sunbridge that provided instructions to the staff member responsible for this manual and, inter alia, indicated that various people had to sign the form; and (5) a recipe purporting to be from Sunbridge for tater tot casserole.[3]

These forms, which appear to be from Sunbridge and have no apparent connection to Regency, Sun or Covina, do not establish that Regency and Covina are so intertwined that they are not separate entities, and that an inequity will be championed if the corporate veil is not pierced.

c. There is no basis for piercing the corporate veil as to Sun.

The evidence establishes that Sun is a shareholder of Regency. Based on the analysis of Regencys lack of alter ego liability, Sun cannot be held liable on an alter ego theory through Regency. Further, the evidence pertaining to Sun is the same as the evidence pertaining to Regency. Accordingly, there is no basis for finding that Sun can be held liable through Covina.

2. Agent liability.

The heirs appellate briefs occasionally mention agent liability. They also contend that Bergs declaration does not eliminate the possibility that Covina is the agent of Regency and Sun. However, the heirs appellate briefs never specifically target the issue of agency, which is fatal.

We note that the heirs did not comply with California Rules of Court, rule 8.204(a)(1)(B). That rule provides that appellate briefs must [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Agency is not stated as an issue in the headings or a subheadings of the heirs opening and reply briefs. Also, the heirs did not cite any law pertinent to determining whether Regency and Sun have an agency relationship with Covina. In this situation, a waiver is properly found. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17 [Amicus curiae California Assessors Association argues the two-year period is a statute of limitations subject to equitable tolling. This argument appears under the heading that Heavenly Valley is equitably estopped from invoking section 1604 because it could have sought an immediate writ instead of waiting out the two-year period. Each point in an appellate brief should appear under a separate heading, and we need not address contentions not properly briefed].)

Additionally, the heirs did not argue agency below. Points not raised in the trial court will not be considered on appeal. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)

3. Direct liability.

The heirs contend that there is no evidence establishing that Regency and Sun did not run Covina. But there is. And we do not find support in the record for the heirs assertion that Regency and Sun assumed an independent duty to provide Renteria with care and breached that duty.

a. The causes of action for willful misconduct, breach of contract, elder abuse, tort per se, fraud by misrepresentation, fraud by concealment, wrongful death and unfair business practices.

Other than negligence, the heirs did not specifically address any of their causes of action. Rather, they argue that Regency and Sun lacked evidence to support their denial of responsibility for, or the undertaking of, the day-to-day operations of Covina. Boiled down, the heirs contend that Bergs declaration is full of hollow conclusions devoid of facts and should be rejected.

Underpinning their attack is a trio of cases. But none of those cases factors into our thought process.

In Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1240 (Tuchscher), the plaintiff sued a port district and port commissioner for interference with an exclusive negotiating agreement through which the plaintiff and a city planned to negotiate a deal for the commercial development of certain property. The port district and port commissioner obtained summary judgment. On appeal, the court noted that the sole evidence offered to prove causation was the plaintiffs declaration that due to communications between the port district, port commissioner, the city and plaintiffs competitors, and due to heavy pressure from the port district and port commissioner, the City abandoned negotiations. The court disregarded the plaintiffs declaration on the grounds that it contained conclusionary and argumentative statements. (Ibid.)

A case cited by Tuchscher, Hayman v. Block (1986) 176 Cal.App.3d 629 (Hayman), is the second case that the heirs rely upon. The Hayman court set forth the well-established rule that affidavits submitted in connection with a summary judgment motion must be based on personal knowledge and cite evidentiary facts, not legal conclusions. (Id. at p. 639.)

Rounding out the trio is Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar). In Aguilar, our Supreme Court dictated that the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Id. at p. 850.)

Bergs declaration does not transgress Truchscher and Hayman because his statements regarding the relationships between Regency and Sun and the operation of Covina are statements of fact. In Truchscher, the plaintiffs statements were mere conclusions. Even though he referred to communications between third parties, he did not identify the specific contents of those communications, nor did he reveal how he was privy to such information. In contrast, Berg stated unequivocally that Sun is a shareholder of Regency, Regency is a shareholder of Covina, and Covina operates itself. Also, he clearly stated that Regency did not have responsibility for or undertake the day-to-day operations of Covina. To underscore this, he declared that, in fact, Regency is a holding company with no employees and does not operate or manage skilled nursing facilities. It is hard to imagine what else the law could require of Berg. Thus, under Aguilar, the burden shifted.

b. The cause of action for negligence.

The heirs contend that when a corporate entity affirmatively undertakes a duty, it can be held liable for breach of that duty. Next, they inform us that they provided ample evidence to show that Regency and Sun affirmatively and independently undertook to provide a safe and healthy facility for [Renteria] and other patients and authorized the [mistreatment] of [Renteria].

These arguments are unavailing.

We turn first to the law cited to us.

For a legal primer, the heirs ask us to consider Waste Management, Inc. v. Superior Court (2004) 119 Cal.App.4th 105, 110, which held: An employers parent corporation is not responsible for the working conditions of its subsidiarys employees based on the existence of the parent-subsidiary relationship. [Citations.] Rather, the parent corporation may be liable only if it assumes a duty to act by affirmatively undertaking to provide a safe working environment at the subsidiarys workplace. [Citations.] Also, the heirs advert to Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591. In Gigax, the court explained that an employee of a subsidiary may sue a parent company because the parent company is not considered a statutory employer and the bar of the workers compensation scheme is therefore inapplicable. (Id. at pp. 601602.) In Boggs v. Blue Diamond Coal Co. (6th Cir. 1979) 590 F.2d 655, the third case we are cited, the Sixth Circuit reached a similar conclusion. It rejected a request by a parent corporation to be deemed inseparable from its subsidiary, and thus protected by workers compensation law, when it was sued by one of its subsidiarys injured employees. (Id. at pp. 662663.)

None of these cases are on point.

Ignoring this deficiency, our task is to fairly assess the heirs evidence to determine if it supports a cognizable claim. The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants conduct, and the policy of preventing future harm. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342343 (Goodman).) Aside from this analysis, a duty can be found if the duty was voluntarily assumed. (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1348.) The foundational requirement of the good Samaritan rule is that in order for liability to be imposed upon the actor, he must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully. [Citation.] (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614615 (Artiglio).)

Keeping Goodman and Artiglio firmly entrenched in our reasoning, we turn to the heirs evidence and evaluate its impact.

The heirs contend that Regency and Sun provided policies and procedures manuals to Covina totaling over 25 volumes and 4700 pages that required Covina to adhere to guidelines as detailed and minute as contents and quantity of food items used in recipes (including in one case the number of pimentos) to specific guidelines for the care of residents suffering from Alzheimers disease and other forms of dementia. To support this charge, the heirs cite to their opposition separate statement and the tater tot casserole recipe provided on a Sunbridge form. But as we indicated in footnote 3, ante, of this opinion, the opposition separate statement is not evidence. It does, and cannot, factor into our analysis. And the recipe for tater tot casserole comes from a dietary recipe manual for which Sunbridge holds the copyright. Nothing in the recipe ties it to Regency or Sun.[4]

Even if Regency or Sun wrote the policies and procedures manual, a duty under Goodman is not the result. There is no suggestion that the policies and procedures were negligent; i.e., if followed, they would result in injury, and possibly even death, to the patients in skilled nursing facilities. Consequently, we infer that the policies and procedures manual did not make it foreseeable that patients would be injured, and there is no moral blame attached. Also, if the policies and procedures manual was appropriate, the policy of preventing future harm would not be advanced by finding that the authors owed a duty to Renteria. Artiglio cannot be invoked, either. The authorship of the policies and procedures manual is not the same thing as undertaking to implement the policies and procedures as to Renteria, i.e., an undertaking to actually provide her with the care she was allegedly deprived of.

Next, the heirs advert to the deposition testimony of Toland. Toland testified that on March 3, 2003, Priscilla Sababin called and indicated that while Renteria was at East Valley Hospital, the hospital staff discovered that Renterias pubic hair had been cut and she had blood in her vagina. Toland faxed a form entitled Confidential Adverse Incident Initial Reporting FormCalifornia Specific to the where form instructed. At the top right of the form it says Sunbridge. She also faxed the form to the California Department of Health Services and Attorney General. Toland later prepared a Confidential Adverse Incident Summary Form. The form purported to be from Sunbridge.

Based on this evidence, the heirs argue that there is evidence that [Regency and Sun] were directly involved in the handling of [Renterias] care and treatment at Covina. [Toland] prepared two reports specifically regarding the possible sexual assault on [Renteria]. . . .  Both reports were transmitted to [Sun] at its corporate headquarters in Albuquerque, New Mexico. . . .  Further, [Toland] called the regional nurse consultant in Mission Viejo regarding the assault, and the consultant assisted Toland in the handling of the matter.

First, we have not been cited to evidence that Toland faxed those reports to Regency and Sun. Second, even if Toland did fax those reports to Regency and Sun, her action would not demonstrate that Regency and Sun assumed any sort of duty of care toward Renteria and her care.

Finally, the heirs contend that as parties to an injunction prohibiting them from violations directly related to her care, [Regency and Sun] undertook and were charged with direct responsibility over the day-to-day operations and minutiae of care provided to [Renteria]. Accordingly, there are disputed factual issues precluding a finding . . . that [Regency and Sun] cannot be held liable. We cannot accede. Notably, the heirs did not cite to a page in the permanent injunction and final judgment where Regency and Sun were specifically charged with Renterias care, or the day-to-day operations of Covina.

In their reply, the heirs posit: [Regency and Sun argue that] the injunction does not ultimately prove [they] were involved in the day-to-day operations of [Covina], but, again, it is not permissible on summary judgment to weigh the evidence. The only issue is whether the injunction raises a triable issue of fact whether [Regency and Sun] were directly involved, and clearly the injunction does that. From this argument we glean that the heirs believe they can defeat summary judgment by pointing at a document that hints of the possibility of a triable issue. But that is not the law of California. Speculative inferences cannot raise a triable issue of fact. (Joseph E. Di Loreto, Inc. v. ONeill (1991) 1 Cal.App.4th 149, 161 [When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork].) Thus, even though the permanent injunction and final judgment provides that Regency and Sun must comply with various California and federal regulations while engaged in the conduct of any business activity involving or related to any facility owned, licensed, operated, managed, directed, administered, or controlled by Regency or Sun, this does not permit us to speculate that they managed, directed, administered or controlled Covina.

DISPOSITION

The judgment is affirmed. Regency and Sun are entitled to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

CHAVEZ

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] According to papers filed below, Priscilla Sababin passed away and her husband, Daniel Sababin, substituted in.

[2] In RLH, the defendant and respondent, SBC Communications, Inc. (SBC), moved for summary judgment, inter alia, on the grounds that it was not liable on an alter ego theory for the policies of its subsidiaries. In reversing summary judgment, the court explained that SBC failed to meet its summary judgment burden of making a prima facie showing no triable issue exists as to whether it is liable for its subsidiaries . . . policies. Whether SBC is liable under either an agency or alter ego theory is a question of fact. [Citations.] The only evidence SBC offers to show no triable issue exists as to these theories is the declaration of an SBC officer averring that SBC and PacBell are separate entities with separate boards of directors. The declaration says nothing about the relationship between SBC and its other subsidiaries, such as Ameritech. It lacks any value in showing no triable issues exist as to whether these subsidiaries are SBCs agents or alter egos. SBC thus failed to shift the burden of production on the agency and alter ego theories to RLH, and is not entitled to summary judgment on this ground. (RLH, supra, 133 Cal.App.4th at pp. 12871288.)

[3] According to the heirs, the policies and procedures manuals covered various areas such as case management, nutritional services, etc. and spans 25 volumes and over 4700 pages. But the heirs did not provide a proper record citation. They cited to their opposition separate statement, but a separate statement is not evidence, it is merely a map to evidence. We have no obligation to hunt through the record to find support for the heirs factual assertions. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

[4] In the reply, the heirs cite to a mission statement in the Sunbridge Operations Legal/Risk Management Policy and Procedure Manual. According to the statement, [Sun] and its affiliated family of companies are committed to ethical care and quality of life for our patients and residents. To fulfill this pledge, and as employers of choice in the communities we serve, we provide quality, cost-effective healthcare services with skill, compassion and respect. We deem this argument abandoned. As case law states, A point not presented in a partys opening brief is deemed to have been abandoned or waived. [Citations.] [Citation.] (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.) Even if we considered this mission statement, it would not change our analysis. The document states that Sunbridge holds the copyright. In other words, the document is not proof that Regency or Sun issued a policy and procedure manual to Covina regarding the care of its patients. At most, the mission statement suggests that Sunbridge, the ostensible author, considers itself as belonging to Suns affiliated family of companies.