Qi v. Zhang CA2/4

Filed 3/15/21 Qi v. Zhang CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
JIANG QI, B303309
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KC068561)
v.
YIDAN ZHANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Gloria White-Brown, Judge. Affirmed.
Law Offices of Steve Qi & Associates, Steve Qi and Steven L.
Sugars for Defendant and Appellant.
Law Offices of Dilip Vithlani and Dilip Vithlani for Plaintiff and
Respondent.
Defendant Yidan Zhang appeals from a judgment following a
bench trial awarding plaintiff Jiang Qi $137,179.12 in damages on his
complaint alleging wage and hour violations; the judgment is payable
jointly and severally by her and codefendants Bluestar Express Group
Inc. (Bluestar), New Diamond Trucking Inc. (New Diamond), and Tom
Zhang, a.k.a. Tao Zhang.1 Yidan contends there was no evidence
introduced at trial to support the trial court’s finding that she is liable
under an alter ego theory. She has forfeited this contention, however,
due to the inadequacy of her appellant’s opening brief. Accordingly, we
affirm the judgment.
BACKGROUND
In light of our finding that Yidan has forfeited the only issue she
raises on appeal, our discussion of the background, which is based upon
the complaint and the trial court’s “order of judgment” (the court did not
issue a statement of decision, as none of the parties requested one) will
be brief.
Bluestar, a trucking company incorporated in California,
employed Qi as a warehouse worker from December 2013 to June 2014
and March 2015 to January 2016. Yidan is the sole shareholder and
chief executive officer of Bluestar.
1 Because Yidan Zhang and Tom Zhang share a last name (although they
apparently are not related to one another) we will refer to them by their first
names to avoid confusion. We mean no disrespect.
2
In June 2016, Qi filed a lawsuit against Bluestar and Yidan
alleging various wage and hour claims related to his employment. Qi
subsequently filed amendments to add defendants to the complaint,
including Tom and New Diamond; all of the added defendants were
dismissed except Tom and New Diamond. The complaint alleged that
each of the defendants was an alter ego of the others.
At trial, Qi presented evidence regarding the relationship between
Bluestar, New Diamond, Tom (who owns New Diamond), Yidan, and
other people and entities. That evidence showed, among other things,
that Bluestar and New Diamond both were managed and operated by
Tom, and that both companies had (at times) the same address and
shared office space, staff, and property.2 Based upon the evidence
2 According to Qi’s trial brief, which was filed shortly before both sides
rested, the evidence also showed (among other things) that (1) Tom was
connected to Bluestar through family and business relations; (2) Tom’s
parents received money from Bluestar and New Diamond even though they
performed little or no work for the companies; (3) Tom’s ex-wife, who worked
for Bluestar, also received money from New Diamond despite not having
performed work for it; (4) Yidan’s husband received a large sum of money
from New Diamond even though he did not perform work for it; (5) Bluestar
and New Diamond (and other affiliated companies) transferred trucks and
other property among themselves without any documentation; (6) New
Diamond paid Bluestar’s discovery sanctions during the lawsuit; (7) Bluestar,
New Diamond, and other affiliates commingled funds and interchangeably
used each other’s trucks; (8) Bluestar was not adequately capitalized
(although Yidan testified that she made an initial capital contribution of
$530,000 to Bluestar, she could not produce any bank records or
documentation to show any contributions other than one for $21,250); (9)
New Diamond could not produce any documentation demonstrating any
capital contributions by any individual; and (10) Bluestar and New Diamond
disregarded corporate formalities. Qi argued this evidence established that
New Diamond, Bluestar, Tom, and Yidan all were liable as alter egos of the
others or under a single enterprise theory.
3
received over the course of a 12-day trial, the trial court found that “the
corporate veils of Bluestar and New Diamond were pierced and [the
court therefore] treats the acts [of both companies] as if they were done
by the individuals Yidan Zhang and Tom Zhang.” The court found that
Qi worked unpaid overtime hours for the defendants, that he was not
paid the legal overtime compensation for his overtime hours, and that
he was entitled to be paid for missed meal breaks; it found he was owed
$125,227.24 in overtime pay, plus $11,952.48 for missed meal breaks.
Therefore, the court ordered that Bluestar, New Diamond, Yidan, and
Tom were jointly and severally liable to Qi in the amount of
$137,179.72.
Judgment was entered, from which Yidan timely filed a notice of
appeal.
DISCUSSION
Yidan contends there was no evidence presented that could
support a finding of alter ego or joint employer liability. In making this
contention, however, Yidan fails to set forth—with specific citations to
the record—any of the relevant evidence presented at trial.3 Instead,
she offers her own argumentative version of the facts, ignoring all
contrary evidence. In doing so, she failed to meet her burden on appeal
and has forfeited the issue.
3 In both her opening brief and her reply brief, virtually all of Yidan’s
references to the reporter’s transcript of the trial are to large swaths of the
transcript, with the same pages cited at each reference.
4
A fundamental rule of appellate review is that “‘a reviewing court
starts with the presumption that the record contains evidence to
sustain every finding of fact.’” (Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 881 (Foreman).) Yidan’s contention “‘requires [her] to
demonstrate that there is no substantial evidence to support the
challenged findings.’ [Citations.] A recitation of only [her] evidence is
not the ‘demonstration’ contemplated under the above rule. [Citation.]
Accordingly, if, as [Yidan] here contend[s], ‘some particular issue of fact
is not sustained, [she is] required to set forth in [her] brief all the
material evidence on the point and not merely [her] own evidence.
Unless this is done the error is deemed to be waived.’” (Ibid.)
Similarly, when setting forth the evidence in the statement of
facts, or when citing to facts in support of contentions made in the legal
discussion, the appellant must cite to the specific portion of the record
that supports each contention. If the appellant fails to do so, the court
may treat that contention as forfeited. (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115 (Guthrey) [“‘The reviewing court is not
required to make an independent, unassisted study of the record in
search of error or grounds to support the judgment.’ [Citations.] It is
the duty of counsel to refer the reviewing court to the portion of the
record which supports appellant’s contentions on appeal. [Citation.] If
no citation ‘is furnished on a particular point, the court may treat it as
waived’”].)
Yidan’s opening brief in this appeal includes a “statement of facts”
that consists mostly of some procedural history, assertions that the
5
evidence at trial showed that Yidan was merely a passive shareholder
of Bluestar,4 and observations that the trial court failed to point to any
evidence supporting its finding of alter ego and/or joint employer
liability in its “statement of decision.”5 Virtually all of Yidan’s citations
to the reporter’s transcripts of the trial in support of her facts are to the
same 140-odd pages of testimony.
In the argument section of her opening brief, she appropriately
cites to cases that discuss the factors that may be considered in
determining whether to apply the alter ego doctrine. But despite
having notice of the factors and evidence Qi relied upon (in his trial
brief) to establish alter ego liability, Yidan addresses in her appellant’s
opening brief only one such factor: failure to adequately capitalize the
corporation. And in doing so, she discusses only the evidence she
presented while ignoring the evidence Qi presented. Moreover, she once
again fails to cite to the specific parts of the record that support her
assertion, instead citing to the same 140-odd pages of reporter’s
transcript that she cites throughout her brief.
By failing to set forth all material evidence relevant to alter ego
liability, and by failing to cite to specific portions of the record that
4 We note that, in fact, the evidence was that Yidan was the sole
shareholder and chief executive officer of Bluestar.
5 Yidan’s reference to a “statement of decision” and to joint employer
liability is incorrect. The trial court stated in its ruling, which it called an
“order of judgment,” that none of the parties requested a statement of
decision. Therefore, the court was not required to make specific factual
findings to support its ruling on alter ego liability. The court did not make
any finding of joint employer liability, instead finding that all parties were
alter egos of the others.
6
support her contentions, Yidan has failed “‘to demonstrate that there is
no substantial evidence to support the challenged findings.’” (Foreman,
supra, 3 Cal.3d at p. 881.) Accordingly, we find her challenge to the
trial court’s finding of alter ego liability is forfeited and we affirm the
judgment. (Ibid.; Guthrey, supra, 63 Cal.App.4th at p. 1115.)
DISPOSITION
The judgment is affirmed. Qi shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
7