Kim v. Kim CA2/8 ( 2014 )

Filed 5/13/14 Kim 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 EIGHT
HYUNG CHUL KIM, B245296
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC467489)
v.
JAMES KIM et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Amy D.
Hogue, Judge. Affirmed.
Peter Beck for Plaintiff and Appellant.
James Kim, in pro. per., for Defendant and Respondent James Kim.
No appearance for Defendant and Respondent Sunset Cellular, Inc.
______________________________
Hyung Chul Kim (appellant) sued James Kim and Sunset Cellular, Inc. (Sunset
Cellular), alleging causes of action under the Labor Code for failure to pay overtime
compensation and other wages. Following a bench trial, the court found appellant was an
independent contractor, rather than an employee, and he was not entitled to relief under
the Labor Code. The court entered judgment in favor of James Kim and Sunset Cellular.1
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The record in this appeal consists of a clerk’s transcript, which contains the case
summary, a minute order and proposed judgment, appellant’s posttrial brief, and the trial
court’s statement of decision. There is no reporter’s transcript. There is also no
complaint or answer. Our summary of facts is taken from the statement of decision.
(Loshonkohl v. Kinder (2003) 109 Cal. App. 4th 510, 512.) We review the record in the
light most favorable to the judgment and resolve all evidentiary conflicts in favor of the
prevailing party. (Burch v. Premier Homes, LLC (2011) 199 Cal. App. 4th 730, 744.)
Appellant and Kim had been friends since childhood. When appellant came to the
United States in 2009, he asked Kim for a job. Kim owns Sunset Cellular. Kim agreed
to pay appellant $1,500 or $2,000 per month to run errands or pick up merchandise for
Sunset Cellular. Appellant used his own car to complete these tasks. He was paid in
cash. Appellant “came and went as he pleased,” and took vacations or days off when he
wished, without needing or seeking Kim’s permission.
1 James Kim is in propria persona before this court. His respondent’s brief purports
to be on behalf of himself and Sunset Cellular. However, a corporation may not appear
in propria persona, or through an officer or agent that is not an attorney. (Caressa
Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094,
1101.) We therefore consider the respondent’s brief on behalf of Kim only; Sunset
Cellular has not entered a valid appearance in this court.
To avoid confusion, we refer to H.C. Kim as appellant, and to James Kim as Kim.
2
In 2011, appellant filed a complaint against Kim and Sunset Cellular. He alleged
violations of Labor Code sections 510 and 1194 (overtime compensation); 226.7
(meal periods); 226 and 226.3 (failure to furnish wage and hour statements); and 201 and
203 (waiting time penalties). He also asserted a claim for unfair competition under
Business and Professions Code section 17200. At a bench trial, Sunset Cellular was not
represented by counsel; Kim represented himself. The court struck Sunset Cellular’s
answer.2
Appellant and Kim testified at trial. The court subsequently summarized the
proceedings in a statement of decision:
“At trial, Defendant Kim’s testimony contradicted Plaintiff H.C. Kim’s testimony
on the question whether H.C. Kim was an employee or an independent contractor.
Neither side called any witness to corroborate his testimony leaving the court to decide a
credibility contest with very little third party or documentary evidence to assist the court.
Since either side could have called or subpoenaed percipient witnesses but failed to do so,
the court faults both sides with the failure to provide stronger evidence in the case. [¶]
It was obvious, at trial, that James Kim and H.C. Kim bear a grudge against one another
and that there are very hard feelings on both sides. Although the animosity between the
parties – who had been friends for 40 years – did not seem to be proportionate to the
dispute presented to the court, neither side provided evidence of any other basis for the
breakdown in their relationship. [¶] Overall, the court found Mr. James Kim to be more
credible [than] H.C. Kim. . . . As noted below, the court’s determination that James Kim
was the more credible witness tips the court’s findings in favor of James Kim on several
key points.”
2 The court’s statement of decision indicated it heard evidence from appellant as a
“prove-up of his claims against the corporation.”
3
The court evaluated the evidence relevant to several factors courts may consider to
determine whether a person is an employee or an independent contractor under California
law. The court concluded appellant was an independent contractor, and this finding was
fatal to all of his claims. This appeal followed.3
DISCUSSION
I. The Trial Court Did Not Err in Dismissing the Case Against Sunset Cellular
Appellant first contends the trial court erred with respect to Sunset Cellular
because the issue as to the company was simply a default prove up, and plaintiff was only
required to establish a prima facie case of damages. We find no error. Although Sunset
Cellular was in default at the time of trial, it was still entitled to judgment in its favor if
the evidence in the trial of claims against Kim established appellant could not make out
his claims against either defendant. “The rule is definitely established that where there
are two or more defendants and the liability of one is dependent upon that of the other the
default of one of them does not preclude his having the benefit of his codefendants
establishing, after a contested hearing, the nonexistence of the controlling fact; in such
case the defaulting defendant is entitled to have judgment in his favor along with the
successful contesting defendant.” (Adams Mfg. & Engineering Co. v. Coast Centerless
Grinding Co. (1960) 184 Cal. App. 2d 649, 655 (Adams Mfg.); Mirabile v. Smith (1953)
119 Cal. App. 2d 685, 689 [where there is only joint liability alleged, and appearing
defendant raises a defense that would exonerate all defendants, no default judgment may
be entered against a defaulting defendant].)
Trial proceeded against Kim individually. As we understand appellant’s
argument, he contends that because Sunset Cellular was in default at the time of trial, and
because the court indicated it would combine the trial of appellant’s claims against Kim
3 On September 18, 2012, the trial court issued an unsigned statement of decision
and a proposed, unsigned judgment. Appellant filed a notice of appeal. After notifying
the parties of the absence of an entered judgment, we dismissed the appeal as premature.
Appellant subsequently secured a final judgment, and filed a motion to stay the remittitur.
We treated the motion as one to recall the remittitur and reinstated the appeal.
4
and a default prove-up hearing against Sunset Cellular, the trial court erred in applying a
preponderance of the evidence standard, allowing Kim to testify “on behalf of the
corporation,” and allowing cross-examination of appellant. However, appellant pursued
claims against Kim individually, and Kim was entitled to defend himself against those
claims. The record does not indicate what range of theories appellant pursued at trial
against Kim individually.4 But a judgment is presumed correct on appeal; error must be
affirmatively shown. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal. 3d
557, 564.) Thus, we presume, as we must, that the trial court properly admitted and
considered evidence regarding the existence of an employer-employee relationship
between appellant and Kim.5 The nonexistence of that relationship was fatal to
appellant’s claims against both defendants. As a result, the trial court properly entered
judgment in favor of Sunset Cellular, as well as Kim. (Adams Mfg., supra, 184
Cal.App.4th at pp. 655-656.) We have no basis to conclude the trial court allowed Kim
to represent Sunset Cellular, or otherwise allowed Sunset Cellular to mount a defense
against appellant’s claims at trial. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34
Cal. 3d 554, 563 [unless otherwise shown it is presumed the court followed the law].)
II. The Incomplete Record is Fatal to Appellant’s Contention that Kim Failed to
Prove Appellant Was an Independent Contractor
Appellant asserts Kim did not meet his burden to prove appellant was an
independent contractor rather than an employee. This is essentially an argument that
there was insufficient evidence to support the trial court’s findings. (See Cristler v.
Express Messenger Systems, Inc. (2009) 171 Cal. App. 4th 72, 78 [substantive
determination of employee or independent contractor is one of fact and must be affirmed
4 The record does not include a copy of the complaint. Thus, it is unclear if, for
example, appellant pursued a theory of alter ego liability as a means to hold Kim liable
for Sunset Cellular’s actions or omissions. (Doney v. TRW, Inc. (1995) 33 Cal. App. 4th
245, 249 [alter ego is essentially a theory of vicarious liability].)
5 In the end, the court concluded Kim could not be held personally liable for any
wages owed to appellant.
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if supported by substantial evidence].) However, “[w]here no reporter’s transcript has
been provided and no error is apparent on the face of the existing appellate record, the
judgment must be conclusively presumed correct as to all evidentiary matters. To put it
another way, it is presumed that the unreported trial testimony would demonstrate the
absence of error. [Citation.] The effect of this rule is that an appellant who attacks a
judgment but supplies no reporter’s transcript will be precluded from raising an argument
as to the sufficiency of the evidence.” (Estate of Fain (1999) 75 Cal. App. 4th 973, 992
(Fain), italics in original.)
Appellant selectively cites some of the trial court’s findings, apparently in an
effort to argue those findings compelled a conclusion that appellant was an employee,
rather than an independent contractor. Yet, appellant’s briefing notably omits the trial
court’s other findings, which supported its ultimate decision. Appellant further ignores
that the court properly engaged in a weighing process, and gave more weight to some
factors than others. On appeal, we do not reweigh the evidence, make our own factual
inferences that contradict those of the trial court, or second guess the trial court’s
credibility determinations. (Citizens Business Bank v. Gevorgian (2013) 218 Cal. App. 4th
602, 613.)
In the absence of a reporter’s transcript or agreed or settled statement, it is
conclusively presumed that substantial evidence supported the trial court’s findings.
(Ehrler v. Ehrler (1981) 126 Cal. App. 3d 147, 154.) It is the appellant’s burden to present
an adequate record for review. Appellant has failed to do so here. We presume the
unreported trial testimony would demonstrate the absence of error. (Fain, supra,
75 Cal.App.4th at p. 992.) Since appellant’s only argument is that Kim did not offer up
sufficient evidence to support the trial court’s independent contractor finding, we must
affirm the judgment. (Oliveira v. Kiesler (2012) 206 Cal. App. 4th 1349, 1362.)
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DISPOSITION
The judgment is affirmed. Respondent Kim shall recover his costs on appeal.
BIGELOW, P.J.
We concur:
FLIER, J.
KUSSMAN, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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