Haynes v. Kim CA2/8 ( 2016 )

Filed 4/12/16 Haynes v. Kim CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CHRIS HAYNES II, an Incompetent B256817
Person, etc.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. PC051411)
v.
CHARLES KIM,
Defendant and Appellant;
U.S. METRO GROUP, INC.,
.
Defendant and Respondent.
APPEALS from a judgment of the Superior Court for the County of Los Angeles.
Joseph DiLoreto, Judge. Affirmed.
Law Offices of Michael J. Piuze, Michael J. Piuze, Geraldine Weiss; Esner Chang
& Boyer and Stuart B. Esner for Plaintiff and Appellant.
Demler, Armstrong & Rowland, Robert W. Armstrong, Katherine C. Sample;
Greines, Martin, Stein & Richland, Robert A. Olson and David E. Hackett for Defendant
and Appellant.
Horvitz & Levy, S. Thomas Todd, H. Thomas Watson; Friedenthal, Heffernan &
Klein, Daniel R. Friedenthal, Jay D. Brown, Kevin N. Heffernan; Kronenberg Law and
William S. Kronenberg for Defendant and Respondent.
__________________________________________
SUMMARY
Plaintiff Chris Haynes II suffered catastrophic brain injuries in a March 2011
collision between his motorcycle and a car driven by Grace Pak. By and through his
guardian ad litem, plaintiff sued Ms. Pak and her father Timothy Pak, who owned the car
Ms. Pak was driving. Plaintiff also sued two other defendants – Charles Kim and U.S.
Metro Group, Inc. (U.S. Metro), a corporation wholly owned by Charles Kim. When the
collision happened, Ms. Pak was driving her young cousin, Brandon Kim, home from
school. Brandon is the son of defendant Charles Kim. Plaintiff alleged Ms. Pak was
acting within the course and scope of an agency relationship with Charles Kim and U.S.
Metro.
In a special verdict, the jury found Grace Pak 90 percent responsible for the harm
to plaintiff, and found his damages totaled $18,572,941.77. The jury also found that
Timothy Pak was an agent or sub-agent of Charles Kim and of U.S. Metro, and that
Grace Pak was an agent or sub-agent of Timothy Pak and of Charles Kim, but not of U.S.
Metro. Judgment was entered for plaintiff against Grace Pak, Timothy Pak and Charles
Kim, but plaintiff recovered nothing from U.S. Metro. Both plaintiff and defendant
Charles Kim appeal.
Defendant Kim contends there was, as a matter of law, only a familial relationship,
not an agency relationship, between him and Timothy and Grace Pak. He argues that
even if there was an agency relationship between Mr. Kim and Timothy Pak, there was
no evidence Timothy Pak validly appointed Grace Pak as a sub-agent. In the alternative,
he contends that, if anything, the Paks were independent contractors.
Plaintiff contends the jury’s findings on the agency relationship between Timothy
Pak and U.S. Metro necessarily meant that Grace Pak was also the sub-agent of U.S.
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Metro, and the jury’s finding to the contrary should be disregarded as surplusage. In the
alternative, plaintiff contends the verdict is inconsistent and a new trial is required as to
U.S. Metro’s liability. Plaintiff also contends the trial court erred in rejecting his claim
that U.S. Metro is liable as the alter ego of Charles Kim.
We find no merit in any of these contentions, and affirm the judgment in its
entirety.
FACTS
There is no dispute over Grace Pak’s negligence or the liability of both Grace Pak
and Timothy Pak, who are not parties to this appeal. The only issues involve the
vicarious liability of Charles Kim and U.S. Metro for Grace Pak’s negligence.
1. The Parties and Their Relationships
Defendant Charles Kim is the sole shareholder of defendant U.S. Metro, a
successful company in the business of providing janitorial services. For many years, he
had a relationship and lived with Jenny Pak, who was the chief financial officer of U.S.
Metro. Charles Kim and Jenny Pak had a son, Brandon, who was five years old at the
time of the accident.
Defendant Timothy Pak was Jenny Pak’s brother. Until sometime in 2008,
Timothy Pak also had a janitorial business. Timothy Pak is married to Jung Hee Pak, and
defendant Grace Pak is their adult daughter.
In 2008, Timothy Pak’s business was failing, and the lender foreclosed on the
home he and his wife owned. Timothy Pak asked his sister Jenny if his family could live
with Jenny and Charles Kim, who resided in a spacious five-bedroom home in Granada
Hills owned by Charles Kim, and Jenny Pak agreed. Timothy Pak and his wife moved
into the Granada Hills home in spring 2008. Later in the year, Grace Pak moved there as
well. After she graduated from Sarah Lawrence College in 2009, Grace Pak returned to
Los Angeles and could not find a job, so she continued to live in Charles Kim’s home.
Jenny Pak became seriously ill in 2008 and died in April 2009. After her death,
the Pak family continued living in the Kim home with Charles Kim and Brandon (and did
so until almost a year after the accident).
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During the Paks’ stay in the Kim home, Charles Kim worked very long hours, six
or seven days a week, at U.S. Metro. Timothy Pak drove Brandon to and from school
every day, and also did some chores around the property. Timothy Pak’s wife, Jung Hee
Pak, took care of Brandon, did the grocery shopping and cooking for everyone, and also
did some of the cleaning. Evelyn Kim (Charles Kim’s adult daughter), who also lived in
the Kim home from 2009 to 2011, testified that Timothy and Jung Hee Pak loved
Brandon and “were no other than a second set of parents for [Brandon].” Jung Hee Pak
and Charles Kim did not get along well, and disagreed on many things.
If Timothy Pak was not available to drive Brandon to or from school, Grace Pak
did so, once or twice a month. Timothy Pak considered it his responsibility either to pick
up Brandon personally or to get someone to do it when he was not available. He owned
two cars, and both of them were equipped with child safety seats for Brandon. Timothy
Pak and Grace Pak were listed by Brandon’s school as authorized to pick him up, as were
Evelyn Kim and Jung Hee Pak.
The Pak family did not pay rent to Charles Kim. The rent for a similar amount of
space and shared amenities in the same neighborhood would have been approximately
$2,400 per month.
For much of the time the Pak family lived in the Kim home, Jung Hee Pak used a
U.S. Metro corporate credit card, issued in her name, to pay for approximately $1,000 to
$1,200 per month or more in food, entertainment, gas and other expenses. (Grace Pak
testified, when asked who provided groceries and food for her parents, that “there was a
stipend that Charles [Kim] provided for,” “about $1,000, a credit card.”)
U.S. Metro deducted all the credit card charges by Jung Hee Pak as business
expenses. There was testimony from an account manager at U.S. Metro that, to her
knowledge, no one had a U.S. Metro corporate card except its employees.
2. The Accident, the Lawsuit and the Verdict
On March 16, 2011, Timothy Pak drove Brandon to school, and then drove
downtown to attend a proceeding related to his company’s bankruptcy. He found that he
would be unable to return on time to pick up Brandon from school, so he called his wife
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and told her that “she should handle it.” His wife, who did not like to drive, said she
would take care of it. Mr. Pak did not know at the time whether his daughter was at
home that day, but he expected that if both his wife and daughter were at home, his
daughter would pick up Brandon. The accident occurred when Grace Pak turned left in
front of a motorcycle driven by plaintiff, who entered the intersection on a yellow light.
At trial in the ensuing lawsuit, the court instructed the jury on general agency
principles, as noted in the margin.1 The court told the jury that if plaintiff proved
Timothy Pak gave Grace Pak authority to act on his behalf, then Grace Pak was Timothy
Pak’s agent and/or sub-agent. With respect to plaintiff’s claim that Grace Pak was also
Charles Kim’s agent or sub-agent, the court instructed the jury, in pertinent part:
“[Plaintiff] also claims that Grace Pak was Charles Kim’s agent and/or subagent
and that Charles [Kim] is therefore responsible for Grace Pak’s conduct. If [plaintiff]
proves that Charles Kim gave Timothy Pak or Grace Pak authority to act on his behalf,
then Grace Pak was Charles Kim’s agent and/or subagent. This authority may be shown
by words or may be implied by the parties’ conduct. This authority cannot be shown by
words of Grace Pak alone.”
As to U.S. Metro, the court instructed:
“[Plaintiff] also claims that Grace Pak was U.S. Metro’s agent and/or subagent and
that U.S. Metro Inc. is therefore responsible for Grace Pak’s conduct. If [plaintiff] proves
that U.S. Metro gave Charles Kim and Timothy Pak and Grace Pak authority to act on its
behalf, then Grace Pak was U.S. Metro’s agent – U.S. Metro Group’s agent and/or
1 “The corporation is responsible for harm caused by the reasonable conduct of its
employees while acting within the scope of their employment. An agent is a person who
at a given time is authorized to act for or in place of another person [who] is called a
principal. One may be an agent although no payment for service is received. [¶] A
subagent lawfully appointed represents the principal in a like manner as the original
agent. . . . [¶] It is not necessary that the conduct of the agent be expressly authorized by
the principal or be undertaken for the benefit of the principal for the conduct to be within
the scope of the agent’s authority. [¶] Conduct which is incidental to, customarily
connected with, or reasonable and necessary for the performance of the authorized act is
within the scope of the agent’s authority.”
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subagent. This authority may be shown by words or may be implied by the parties’
conduct. This authority cannot be shown by words of Grace Pak alone. [¶] U.S. Metro
is a corporation. A corporation can act only through its officer and employee. An act or
omission of an officer or employee within the scope of his authority or employment is, in
the law, the act or omission of such corporation.”
On March 14, 2014, the jury rendered a special verdict, after which the jury was
polled on each question. The jury found both Grace Pak and plaintiff were negligent, and
assigned 90 percent responsibility to Grace Pak and 10 percent to plaintiff. In addition,
the jury found that: (1) Timothy Pak was an agent or sub-agent of Charles Kim and U.S.
Metro on the date of the accident; (2) Grace Pak was an agent or sub-agent of Timothy
Pak and Charles Kim at the time of the accident; and (3) Grace Pak was not an agent or
sub-agent of U.S. Metro at the time of the accident.
Counsel for the parties raised no objections to the verdict or to the discharge of the
jury.
On March 24, 2014, the court held a hearing on plaintiff’s claim that U.S. Metro
was the alter ego of Charles Kim. The court denied plaintiff’s claim, ruling the case was
governed by Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal. App. 4th 1510,
1512-1513 (Postal Instant Press) (rejecting “third party or ‘outside’ reverse piercing of
the corporate veil,” and holding “a third party creditor may not pierce the corporate veil
to reach corporate assets to satisfy a shareholder’s personal liability”). The court also
ruled there was no need to exercise equitable jurisdiction “because there’s an adequate
remedy of law, and that adequate remedy of law is that you can attach the assets of the
one and only shareholder.” The court further noted the existence of other remedies
(fraudulent transfer, injunction, appointment of a receiver), observing “[t]here’s a zillion
ways to enforce this judgment against him.”
Also on March 24, 2014, plaintiff filed a “brief re inconsistent verdict,” arguing
that judgment should be entered against U.S. Metro, because the jury’s findings that
Grace Pak was Timothy Pak’s agent, and that Timothy Pak was U.S. Metro’s agent,
meant that Grace Pak was U.S. Metro’s agent as a matter of law. Plaintiff also contended
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that if the trial court concluded the inconsistent verdict could not be harmonized, a
mistrial should be declared.
After briefing and a hearing, the court ruled the jury was asked to make a specific
finding, and the court was not prepared to disregard it: “All the attorneys approved it.
There’s no question about that. Is it an invited error, I don’t know, maybe it is or maybe
it isn’t; but, notwithstanding that, they were asked to make a specific finding and they
did. And at this point I’m not prepared to disregard the finding . . . .”
Accordingly, the court entered judgment ordering that plaintiff recover
$16,715,647.59 from defendants Grace Pak, Timothy Pak and Charles Kim, and recover
nothing from U.S. Metro.
3. Postjudgment Proceedings
After judgment was entered, Charles Kim filed motions for judgment
notwithstanding the verdict and for a new trial. Defendant Kim argued that the
overwhelming weight of the evidence was contrary to the jury finding on the agency
issue, and the jury would likely have reached a different result “had they been properly
instructed as to the law of agency via the special instructions which were proposed by the
defendant and rejected by the trial court.”2 The trial court denied both motions, saying
this:
“[W]hen you analyze the evidence in this case, I think it’s clear that what the Paks
were doing for the Kims was really not out of the goodness of their heart because [these]
people didn’t particularly like each other. So if they didn’t particularly like each other,
why [were] the Paks picking up Mr. Kim’s child?
“Well, I think the answer is obvious, and I think that was obvious to the jury. The
reason they’re doing it . . . is they’re getting compensation for it. He’s letting them live
in his house and he’s giving them pretty much a carte blanche use of some credit cards in
2 These special instructions included, for example, that “[i]n the absence of the
essential characteristic of the right of control, there is no true agency,” and “[t]he primary
test for determining whether a person performing gratuitous services for another does so
as the latter’s agent is whether or not the alleged principal controlled or had the legal
right to control the activities of the alleged agent.”
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this case. [¶] . . . [¶] . . . I think it was reasonable for the jury to conclude that there
was consideration given for the fact that Mr. Kim, because of the way he worked -- . . .
that he was a quintessential workaholic, and he spent every hour of his daylight time . . .
thinking about his business . . . .
“So I think in this case, first, that there is a factual basis based upon the conduct of
the parties and the continued conduct of the parties. This wasn’t a case where they’re
taking the child to school once a week or once a month or when one of parents gets sick
or somebody is out of town. This was a pattern of conduct which the parties
acknowledge, ‘That was my job.’ [¶] . . . [¶]
“So when you look at . . . the totality of the evidence . . . , I think that the acts
weren’t gratuitous. I think they’re not analogous into a family situation. I think there
was consideration for doing it. I think the parties expected each other to perform certain
duties. Picking up and taking a child to school really doesn’t require a lot of exercise of
authority or direction. I mean, ‘take my kid and bring him to school. Make sure he gets
home safely.’ So I’m not concerned about that, about, you know, telling him exactly
what to do and how to do it, et cetera.
“So this was more than just doing a favor for a relative. Certainly it was. And I
think, under the circumstances of this case, that there is certainly sufficient evidence for
the jury to determine that the agency existed, and that’s exactly what they did over five
days of deliberation.”
Plaintiff appealed from the judgment in favor of U.S. Metro, and defendant Kim
appealed from the judgment and the orders denying his motions for judgment
notwithstanding the verdict and for a new trial.
DISCUSSION
1. Defendant Kim’s Appeal
Defendant Kim’s principal contention is that there cannot be an agency
relationship between him and Grace Pak as a matter of law. Specifically, he asserts that
“[h]ousehold errand-running family members and co-habitants are not ‘agents’ and their
negligence cannot be imputed to their relatives or others living in their households.” For
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this proposition, Mr. Kim relies on Edwards v. Freeman (1949) 34 Cal. 2d 589
(Edwards). Edwards, we are told, “leaves no doubt that when family members help each
other by running errands, without any evidence of an employment relationship, and
without any evidence showing a right to control, there is no basis for imputing negligence
between them.” We disagree with Mr. Kim’s contention, and with the conclusions he
draws from Edwards.
In Edwards, the plaintiff asked her son to take her along with him the next time he
was driving into town, so that she could get her eyes tested. The son agreed to do so on
the following day, when he had an errand in town. The plaintiff was injured in a collision
between the son’s automobile and a pickup truck that occurred on their way to town. The
Supreme Court held the son’s negligence could not be imputed to the mother to bar her
recovery in her lawsuit against the other driver. (Edwards, supra, 34 Cal.2d at pp. 591-
592.)
Mr. Kim is correct that Edwards held, “where the evidence shows no more than a
friendly or filial service, gratuitously rendered, it was error to submit the issue of imputed
negligence to the jury . . . .” (Edwards, supra, 34 Cal.2d at p. 594.) This, however, is not
such a case, because there was substantial evidence (related above) from which the jury
here could find that the service rendered by Timothy Pak to Charles Kim was not “a
friendly or filial service, gratuitously rendered . . . .” (Ibid.) As we have seen, the trial
judge’s view of the evidence was the same as the jury’s: this was “more than just doing a
favor for a relative“ and “the acts weren’t gratuitous”; “there was consideration for doing
it.”
We are aware of no authority for the proposition that a family member who
performs services for another family member, and receives compensation for doing so,
cannot be an agent. None of the cases Mr. Kim cites suggests as much, and the law is to
the contrary. The rule is stated in Harpst v. Kirkpatrick (1972) 26 Cal. App. 3d 482, 486:
“While a member of a family may be an agent of another member of the family, for
purposes of imputing negligence the mere gratuitous performance of familial services by
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one for the other does not convert the family activity into a joint enterprise [citation] or
establish a principal and agency relationship between them [citation].” (Italics added.)
All the cases Mr. Kim cites involve gratuitous acts of friends, colleagues or family
members. (See, e.g., Flores v. Brown (1952) 39 Cal. 2d 622, 628 [the negligence of a
defendant who was towing a business associate’s trailer for the associate’s benefit “may
be imputed to [the associate] only if [the defendant] was acting as his agent or
employee”; if the defendant was hauling the trailer “as a mere favor” to his associate, or
as an independent contractor, “negligence may not be imputed”]; Harpst v. Kirkpatrick,
supra, 26 Cal.App.3d at pp. 484, 486 [grandmother’s negligence in caring for child was
not imputable to mother and did not bar mother’s recovery for death of child struck by
the defendant’s automobile; “the evidence merely showed that [the grandmother] was
gratuitously rendering a familial service in caring for her granddaughter on the date of the
accident”]; Stoddard v. Fiske (1917) 35 Cal. App. 607, 609 [driver who had an accident
while on an errand to assist a friend was not the friend’s agent; “it is clear that the [driver]
undertook what he did in order to be of assistance to [his friend] in his difficulty and as
an act of friendship from one man to another”; the doctrine of respondeat superior “must
necessarily be based upon a relationship between two parties by which one has the legal
right to direct the activities of the other and the latter the legal duty to submit to such
direction”].)
Mr. Kim reads the word “gratuitous” out of the governing principles, and ignores
the evidence in this case that clearly permits the inference that Timothy Pak did not act
“gratuitously.” Instead, Mr. Kim points to the Supreme Court’s statement in Edwards,
that “to permit a finding of agency upon this evidence would be, in effect, to hold that
one who performs a mere favor for another, without being subject to any legal duty of
service and without assenting to any right of control, can be an agent,” and “[t]his is not
the law.” (Edwards, supra, 34 Cal.2d at pp. 591-592.) According to Mr. Kim, there was
“no evidence that [he] exercised control over the manner in which Grace was driving” or
that “he had the right or power to control her operation of [Timothy Pak’s vehicle],” and
indeed that he “had no legal right to tell Tim or Grace to pick up Brandon.”
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These arguments have no merit. The evidence supported the conclusion there was
an agreement between Timothy Pak and Mr. Kim that Mr. Pak was responsible for
driving Brandon to and from school. And there was likewise plenty of evidence that
Timothy Pak did not do so “gratuitously” or “as a mere favor” or “as an act of
friendship”; the evidence showed Timothy Pak and his family received economic benefits
of more than $3,000 per month for several years. Similarly, the claim Mr. Kim had no
control over “the manner in which Grace was driving” is a red herring. (See Malloy v.
Fong (1951) 37 Cal. 2d 356, 370 [“The power of the principal to terminate the services of
the agent gives him the means of controlling the agent’s activities,” and “ ‘[t]he right to
immediately discharge involves the right of control.’ ”].)
Mr. Kim tells us that his provision of rent-free housing and payment of Pak family
expenses “makes absolutely no difference here.” No legal authority supports that
proposition. Mr. Kim asserts that Planck v. Hartung (1979) 98 Cal. App. 3d 838 holds
that “the sharing of household expenses, and even the repeated performance of household
chores, among co-habitants does not support the imputation of negligence from one co-
habitant to another.” Planck v. Hartung did not so hold. It did not involve agency
principles. It involved a claim that two unmarried people living together as a family were
engaged in a joint venture – a “ ‘common business undertaking’ ” – making both of them
liable for damages from a fire occasioned when one of them negligently used a barbeque
device owned by the other. (98 Cal.App.3d at pp. 840, 841.) This proposition was
soundly rejected, the court observing there was no business purpose or profit motive (as
is required for a joint venture) in their living arrangement, other than the benefit normal
and typical in all families. (Id. at p. 841.) Further, if they had been married, there would
have been no liability imputed from one to the other, and “[a] fortiori there is none here.”
(Id. at pp. 841, 842.) Planck v. Hartung is not relevant to this case.
Mr. Kim also offers a six-page argument that the jury’s verdict finding Grace Pak
was his agent or subagent is contrary to public policy and “has no limits.” We decline to
consider a public policy claim that reaches beyond case authorities, has no grounding in
statutory law, and is untethered to the facts before the jury in this case.
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Next, Mr. Kim contends Grace Pak’s negligence cannot be imputed to him in any
event because the Paks were independent contractors. There follows a discussion of the
distinctions between the employer-employee relationship (where respondeat superior
doctrine applies) and the hirer-independent contractor relationship (where it ordinarily
does not). (See Flores v. Brown, supra, 39 Cal.2d at p. 628 [defendant’s negligence may
be imputed to business associate only if the defendant “was acting as his agent or
employee,” not if the defendant was doing “a mere favor” or was acting as an
independent contractor].) We find Mr. Kim’s discussion irrelevant in this case, where the
only question is whether an agency relationship existed. So far as the record shows, the
jury was not instructed on independent contractor status, nor did Mr. Kim (or anyone
else) request such an instruction. It is far too late to raise the point at this stage.
Finally, Mr. Kim argues that even if he and Timothy Pak had an agency
relationship, Grace Pak could not have been his subagent as a matter of law. He points to
Civil Code section 2349, which provides that an agent can delegate his powers to another
person in four cases, “and in no others.” (Civ. Code, § 2349.) Those four circumstances
are “[w]hen the act to be done is purely mechanical;” or “[w]hen it is such as the agent
cannot himself, and the subagent can lawfully perform;” or “[w]hen it is the usage of the
place to delegate such powers;” or “[w]hen such delegation is specially authorized by the
principal.” (Id., subds. 1-4.) According to Mr. Kim, there was no evidence any of these
circumstances existed. Once again, we reject Mr. Kim’s analysis.
We begin by noting that the initial instructions to the jury on subagents was simply
this: “A subagent lawfully appointed represents the principal in a like manner as the
original agent.” Mr. Kim did not object to this instruction. Nor did he argue to the jury
that Timothy Pak could not lawfully delegate his authority to Grace Pak – he merely
argued that Timothy Pak was not his agent and this was just a case of “[f]amily . . .
helping family.”
During deliberations, however, the jury submitted a question: “Please define and
explain the meaning of ‘lawfully appointed’ and the jury instructions regarding sub-
agent.” The trial court announced its intention to read directly from Civil Code
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section 2349, and to give the jury hard copies as a special jury instruction.3 There was no
objection by any party.
Now, Mr. Kim insists there was “no evidence” that driving Brandon home from
school was “purely mechanical,” or that it was “the usage of the place” to delegate his
driving duties, or that Charles Kim “specially authorized” Timothy Pak to delegate the
driving to Grace Pak, and he claims that Timothy Pak was not “legally compelled” to
remain at the bankruptcy court proceedings. But none of the statutory terms was further
defined for the jury, and Mr. Kim did not request any further elaboration. The jury may
well have concluded that driving was “purely mechanical” (and the authorities Mr. Kim
cites for his claim that driving involves “judgment and discretion” do not involve
driving). Similarly, Mr. Kim merely asserts, without citation of authority, that he did not
“specially authorize[]” any delegation of Timothy Pak’s driving duties to Grace Pak. But
the jury could surely infer that Charles Kim in fact approved the delegation to Grace Pak,
since her name appeared on school forms listing persons authorized to pick up his son at
school. Further, Mr. Kim cites no authority for his interpretation of Civil Code section
2349, subdivision 2 (which he says requires evidence that Timothy Pak was “legally
compelled” to remain at the bankruptcy court on the day of the accident, in order to
satisfy the requirement that he “cannot himself, and the subagent can lawfully perform”
the driving he delegated that day).
In short, we see no basis for ignoring the jury’s special verdict that Grace Pak was
“an agent or sub-agent” of Timothy Pak and Charles Kim.4
3 Also included in the answer to the jury’s question were Civil Code sections 2350
and 2351. Section 2350 states that “[if] an agent employs a subagent without authority,
the former is a principal and the latter his agent, and the principal of the former has no
connection with the latter.” Section 2351 provides that “[a] sub-agent, lawfully
appointed, represents the principal in like manner with the original agent; and the original
agent is not responsible to third persons for the acts of the sub-agent.”
4 Defendant Kim also contends, in a “contingent and protective” respondent’s brief
in plaintiff’s appeal, that the verdict was inconsistent and that a new trial is required as to
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2. Plaintiff’s Appeal
a. The special verdict
Plaintiff contends judgment should have been entered against U.S. Metro, despite
the jury’s finding that Grace Pak was not an agent or sub-agent of U.S. Metro. In
plaintiff’s view, once the jury found that Timothy Pak was “an agent or sub-agent” of
U.S. Metro, and that Grace Pak was “an agent or sub-agent” of Timothy Pak, those
findings required the conclusion – as a matter of law – that Grace Pak was also a sub-
agent of U.S. Metro. Consequently, we are asked to disregard the jury’s finding to the
contrary as “surplusage,” and if not, to find the verdict is inconsistent, requiring a new
trial. We are not persuaded.
i. The legal principles
“[W]e review a special verdict de novo to determine whether its findings are
inconsistent.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal. App. 4th 338, 358.)
A special verdict is deemed inconsistent when it is “ ‘beyond possibility of reconciliation
under any possible application of the evidence and instructions.’ [Citation.]” (Oxford v.
Foster Wheeler LLC (2009) 177 Cal. App. 4th 700, 716.) “ ‘The inconsistent verdict rule
is based upon the fundamental proposition that a factfinder may not make inconsistent
determinations of fact based on the same evidence.’ [Citations.]” (City of San Diego v.
D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal. App. 4th 668, 682.) “The
proper remedy for an inconsistent special verdict is a new trial.” (Singh, supra, at p.
358.)
A party who fails to object to a special verdict before the jury is discharged may
forfeit his claim that the special verdict is defective. (E.g., Taylor v. Nabors Drilling
USA, LP (2014) 222 Cal. App. 4th 1228, 1242-1243 [“Because appellant did not object
and had expressly approved the erroneous verdict form, it forfeited its claim that the
special verdict is defective because the jury did not answer [two] questions.”].) Waiver
all parties. We discuss and reject the inconsistency claim in connection with plaintiff’s
contentions concerning the verdict in favor of U.S. Metro.
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(forfeiture) is not automatic and there are exceptions to this rule. (Woodcock v. Fontana
Scaffolding & Equipment Co. (1968) 69 Cal. 2d 452, 456, fn. 2; see ibid. [“[w]aiver is not
found where the record indicates that the failure to object was not the result of a desire to
reap a ‘technical advantage’ or engage in a ‘litigious strategy’ ”; “waiver is not an issue
where a defect is latent and there is no hint of ‘litigious strategy’ ”].) But as the Supreme
Court explained in Keener v. Jeld-Wen, Inc. (2009) 46 Cal. 4th 247, “ ‘Failure to object to
a verdict before the discharge of a jury and to request clarification or further deliberation
precludes a party from later questioning the validity of that verdict if the alleged defect
was apparent at the time the verdict was rendered and could have been corrected.’
[Citation.]” (Id. at pp. 263-264, italics omitted; see id. at p. 270 [“Woodcock’s articulated
exception to the waiver (forfeiture) rule for ambiguous verdicts” did not apply to
incomplete polling of a juror].)
ii. This case
Plaintiff at no point objected to the special verdict form, which asked the jury to
make separate findings as to Timothy Pak and Grace Pak. All the parties agreed on the
special verdict form. Nor did plaintiff raise any objection to the special verdict after it
was read in open court and the jury was polled on each question. Nor was this a case
where there was any latent defect in the verdict. On the contrary, the answers plaintiff
now asserts are inconsistent – that Timothy Pak was an agent or subagent of U.S. Metro,
and Grace Pak was not – were perfectly plain when the verdict was rendered. Under
these circumstances, we conclude the rule stated in Keener applies: here, plaintiff failed
to object and request clarification or further deliberation on the jury’s answers, even
though the now-claimed inconsistency was apparent. (Keener, supra, 46 Cal.4th at pp.
263-264; see Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 131 [the
defendant “waived any objection to the special verdict form by failing to object before
the court discharged the jury”]; but see Zagami, Inc. v. James A. Crone, Inc. (2008) 160
Cal. App. 4th 1083, 1093, fn. 6 [“inconsistent jury findings in a special verdict are not
subject to waiver by a party”].)
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Plaintiff attempts to avoid this result by claiming he “is not contending that the
special verdict form is erroneous,” but only that the jury’s other answers made its finding
that Grace Pak was not U.S. Metro’s agent or subagent “surplusage” that we may
disregard, and alternatively that it is inconsistent. But of course we cannot disregard a
jury’s finding on a factual matter it was specifically asked to determine. The cases
plaintiff cites to support his contention that we should disregard the jury’s finding as
“surplusage” are uniformly inapt. (See, e.g., Dauenhauer v. Sullivan (1963) 215
Cal. App. 2d 231, 234-235 [a verdict awarding plaintiffs damages of $37,000 “was in itself
sufficient to constitute a complete verdict, and the additional language apportioning
damages among the several defendants was mere surplusage which could be disregarded
by the trial court at the time of entry of judgment”; independent tortfeasors were jointly
and severally liable where their acts united in causing one single and indivisible result].)
In short, the claim of “surplusage” is meritless, and we find defendant forfeited the
claim that the jury’s findings were inconsistent. But in any case, the inconsistency claim
fails on the merits.
The question of agency is a finding of fact. The jury was not instructed that, if it
found Timothy Pak was U.S. Metro’s agent or subagent, then it must also find that Grace
Pak, too, was U.S. Metro’s agent or subagent. No party ever requested any such
instruction. The jury was instructed that Timothy Pak was responsible, and Grace Pak
was his agent or subagent, if plaintiff proved “that Timothy Pak gave Grace Pak authority
to act on his behalf . . . .” Clearly he did. Similarly, the jury was instructed that Charles
Kim was responsible, and Grace Pak was his agent or sub-agent, if plaintiff proved “that
Charles Kim gave Timothy Pak or Grace Pak authority to act on his behalf . . . .” (Italics
added.) Again, clearly there was evidence that Charles Kim gave Timothy Pak that
authority, and that was enough to make Charles Kim responsible for Grace Pak’s
conduct.
The evidence, however, showed no direct link of any kind between U.S. Metro
(i.e., Charles Kim in his capacity as CEO of U.S. Metro) and Grace Pak. (Plaintiff asserts
there was “ample evidence” of a connection between U.S. Metro and Grace Pak, but the
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only evidence is “through Tim Pak.” And that evidence consists only of the fact that
Timothy Pak’s wife – not Grace Pak – used a U.S. Metro credit card to pay for household
expenses.) Thus, from the instructions and the evidence (more precisely, the lack of
evidence), the jury was certainly justified in concluding that, whatever may have been the
relationship between U.S. Metro and Timothy Pak, U.S. Metro did not give Grace Pak
any authority to act on its behalf in transporting Brandon.
Plaintiff insists that if Timothy Pak was U.S. Metro’s agent or sub-agent, then
Grace Pak was also, as a matter of law, simply because she was Timothy Pak’s agent or
sub-agent. In other words, the claim is that if one person (Grace Pak) is the agent of
another person (Timothy Pak) who has two principals (U.S. Metro and Charles Kim
individually), then she is necessarily also the agent of both of the other person’s (Timothy
Pak’s) principals. We see no reason why that is necessarily so. The jury could have
found that Timothy Pak was authorized to act for both U.S. Metro and Charles Kim on
the date of the accident (as it did), but that when he authorized Grace Pak to pick up
Brandon, Timothy Pak was in fact acting only for Charles Kim in his individual capacity.
That is a common-sense view of the facts presented to the jury. As already noted, the
connection between U.S. Metro and Timothy Pak was the compensation provided by
virtue of the U.S. Metro credit card used by Timothy Pak’s wife. The jury may well have
concluded that this was too tenuous a connection to extend to Grace Pak, and that
Timothy Pak was acting only for Charles Kim individually when he authorized Grace
Pak to pick up Brandon.
Further, plaintiff cites no legal authority for the proposition that an agent with two
principals (Timothy Pak) must be acting for both of them when he appoints a sub-agent
(Grace Pak). Plaintiff merely states, without citation of authority, that the jury found
Timothy Pak vicariously liable for Grace Pak’s tortious conduct, and “[i]n turn, US
Metro, Inc., as Timothy Pak’s principal, was vicariously liable for his tortious conduct.”
(Italics added.) This statement itself is incorrect, because Timothy Pak engaged in no
tortious conduct; he was only liable vicariously for Grace Pak’s conduct. And if plaintiff
means to say that U.S. Metro, as Timothy Pak’s principal, was vicariously liable for
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Grace Pak’s tortious conduct, plaintiff is merely stating the result he wants to reach. The
jury found otherwise, and the instructions and evidence permitted the jury so to find.
In sum, there is no merit to plaintiff’s claim that the special verdict was
inconsistent in any of its findings.
b. The alter ego issue
Plaintiff also contends the trial court erred when it rejected his claim that U.S.
Metro should be liable for the judgment against Mr. Kim in any event, because U.S.
Metro is Mr. Kim’s alter ego. The trial court followed the principle stated in Postal
Instant Press, where the court held that “a third party creditor may not pierce the
corporate veil to reach corporate assets to satisfy a shareholder’s personal liability.”
(Postal Instant Press, supra, 162 Cal.App.4th at p. 1513 [rejecting “third party or
‘outside’ reverse piercing of the corporate veil”].) We find no error in the trial court’s
ruling.
This case does not require us to depart from the sound reasoning in Postal Instant
Press. The opinion includes a thorough analysis of cases from California, federal and
other state courts discussing “outside reverse piercing of the corporate veil,” both cases
accepting, and others rejecting that theory of alter ego. The Postal Instant Press opinion
rejected it as “a radical and problematic change in standard alter ego law.” (Postal
Instant Press, supra, 162 Cal.App.4th at p. 1521.)
It would be inappropriate to apply the doctrine of outside reverse piercing in this
case. The fundamental rule for disregarding the corporate entity, whether based on
“outside reverse piercing” or otherwise, has two essential requirements. The first,
emphasized by plaintiff, is “ ‘such unity of interest and ownership that the separate
personalities of the corporation and the individual no longer exist . . . .’ ” (Mesler v.
Bragg Management Co. (1985) 39 Cal. 3d 290, 300.) The second requirement is that
“ ‘the facts are such that an adherence to the fiction of the separate existence of the
corporation would, under the particular circumstances, sanction a fraud or promote
injustice.’ [Citation.]” (Wood v. Elling Corp. (1977) 20 Cal. 3d 353, 365, fn. 9 (Wood).)
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Here, the trial court properly concluded this was not a case for the exercise of
equitable power to pierce the corporate veil, because there are adequate legal remedies:
attachment of Mr. Kim’s assets (he is the sole shareholder of U.S. Metro); fraudulent
transfer claims (if Mr. Kim were to transfer personal assets into the corporation);
injunction; receivership; and so on. The trial court’s conclusion is supported by Postal
Instant Press, where the plaintiff failed to pursue available legal remedies. It is also
supported by traditional alter ego cases, where the Supreme Court permits us to disregard
the corporate form only “when the ends of justice so require . . . .” (Mesler v. Bragg
Management Co., supra, 39 Cal.3d at p. 301.)
On appeal, plaintiff ignores these authorities and the principles they enunciate, and
expressly disclaims any contention that Mr. Kim has transferred assets to U.S. Metro to
avoid liability to plaintiff. Instead, plaintiff claims “that due to the manner in which
Mr. Kim operated US Metro[,] that corporation has no identity separate and apart from
Mr. Kim and that this provides another independent basis to conclude that US Metro is
responsible for the tortious conduct of the Paks.” As we have seen, that plainly is not the
law.
In short, the law requires both a lack of separate identity and an inequitable result
before we may disregard the corporate form. Plaintiff has not shown, or even articulated
a theory for showing, that “ ‘adherence to the fiction of the separate existence of the
corporation would, under the particular circumstances, sanction a fraud or promote
injustice.’ ” (Wood, supra, 20 Cal.3d at p. 365, fn. 9.) The trial court did not err in
refusing to recognize plaintiff’s alter ego claim.
DISPOSITION
The judgment is affirmed. U.S. Metro Group, Inc., shall recover its costs on
appeal. Plaintiff shall recover costs incurred in responding to Mr. Kim’s appeal.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J. FLIER, J.
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