Rubio v. CIA Wheel Group ( 2021 )

Filed 4/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CARLOS RAMON RUBIO et al., B300021
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC545112)
v.
CIA WHEEL GROUP et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Randolph Hammock, Judge. Affirmed.
Pillsbury Winthrop Shaw Pittman, Stacie D. Yee and
Justin L. Brossier for Defendants and Appellants.
V. James DeSimone Law, V. James DeSimone and Carmen
D. Sabater for Plaintiffs and Respondents.
_________________________
CIA Wheel Group dba The Wheel Group (CWG) and Wheel
Group Holdings dba The Wheel Group (Holdings) appeal from a
judgment entered against them after a bench trial in a wrongful
termination action brought by former employee Maria Teresa
Lopez. Lopez alleged, inter alia, that CWG terminated her in
violation of public policy because she had cancer. Lopez died
during the first trial of this matter, and the court declared a
mistrial. The court appointed Lopez’s three children (hereafter
plaintiffs) as her successors in interest. Following a second trial,
the court found CWG terminated Lopez due to her medical
condition, awarded plaintiffs $15,057 in economic damages, and
added Holdings as a judgment debtor as the alter ego of and/or
successor in interest to CWG, which had been dissolved. The
court determined punitive damages were warranted, found
Lopez’s noneconomic damages to be in the $100,000 to $150,000
range but not recoverable by plaintiffs after her death due to the
provisions of Code of Civil Procedure section 377.34,1 and
awarded punitive damages in the amount of $500,000 against
appellants.
Appellants contend: 1) the punitive damages award is
constitutionally excessive because it is 33 times the amount of
the economic damages award; 2) the punitive damages award is
excessive under California law; 3) the trial court erred in
considering Holdings’s financial condition in determining the
amount of punitive damages; and 4) substantial evidence does
not support the trial court’s finding that an officer, director or
managing agent of CWG acted with fraud, oppression or malice,
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
or that any such conduct was ratified by CWG. We affirm the
judgment.
BACKGROUND
In about May 2011, Lopez began work as a sales
representative for CWG. She worked with two other sales
representatives, Gaspar Vasquez and Melvin Amaya. Lopez
worked primarily in the office while Vasquez and Amaya were in
the field. The three representatives were supervised by A.J.
Russo. All four were based in CWG’s office in Los Angeles, which
was responsible for sales in several southwestern states.
In October 2012, Lopez learned she had cancer and took a
three-month medical leave from CWG for surgery. She returned
to work full-time in January 2013. Beginning in February 2013,
she underwent chemotherapy once every three weeks. By August
2013, she had completed chemotherapy but still had follow-up
medical appointments about twice a month. In November 2013,
CWG terminated Lopez’s employment. Russo stated the
termination was performance related, but Lopez believed she was
being terminated because she had cancer.
I. Lopez’s Termination After Medical Leave and
Chemotherapy Appointments
When Lopez was terminated, her personnel file did not
include any written performance warnings or disciplinary
actions. In 2011, 2012, and 2013, Lopez was the highest
producing sales person in the Los Angeles office. When she was
fired, she had higher sales numbers than the other two sales
representatives.
Emails between Russo and Lopez showed that before Lopez
took her medical leave, Russo praised her work and was
3
agreeable when she asked for time off. They had a good
relationship.
After Lopez returned from medical leave, Russo made
negative comments to her and the other employees about Lopez
taking time for medical appointments. He would roll his eyes
and breathe heavily as if frustrated. Russo began to complain
about Lopez’s behavior, particularly that she took a morning
coffee break, which had not caused a problem before her medical
leave. He began treating her differently than the other two sales
representatives. For example, he kept asking her for more detail
on her call logs, even though she included more detail than
Vasquez. Vasquez testified at trial that he only put a few words
on his call logs and never received an email asking for more
detail. Russo began taking credit for Lopez’s sales, and when she
confronted him, he told her it did not matter who was credited for
the sales. Vasquez testified Russo also took credit for some of
Vasquez’s sales, but when Vasquez confronted Russo, he changed
the name on the sale without argument.
Lopez felt significant stress because of Russo’s behavior
and sought assistance from CWG’s Human Resources
department. She told Arnex Casar, the Human Resources
manager, that Russo picked on her but not on other sales
representatives. Casar told her she should not “bump heads”
with her supervisor.
Casar did not document Lopez’s complaint. He
acknowledged at trial that Lopez had told him Russo was not
being fair and was favoring other employees, and that Russo was
switching accounts. He also admitted he told her it was not a
human resources matter and she should sit down and talk to
Russo. Casar did not raise the matter with Russo.
4
Casar had the responsibility to ensure CWG’s policies were
followed in termination decisions, and he had the ability to stop
terminations. Several months later, when Russo told Casar he
intended to terminate Lopez because her sales were down, Casar
did not check to see if this was true. In Lopez’s file Casar did not
find any written warnings, coaching, or notices to improve.
Casar was aware Lopez had taken a medical leave. He
nevertheless, in his discretion, allowed Russo to terminate Lopez
in violation of CWG’s policy, which required a warning, ordinarily
in writing, before termination.
Neither did Russo meet resistance to firing Lopez from
Paul Yang, Executive Vice President of CWG and son of the
owner of the company. Yang oversaw human resources, and his
approval was required for employee terminations. Russo told
Yang Lopez’s sales numbers were down. Although Yang oversaw
the accounting department, he did not check to see if Russo’s
statement was accurate. Yang did not speak to Casar, the
human resources manager, about the termination. Yang did not
check Lopez’s file for warnings or disciplinary problems. He
simply accepted Russo’s recommendation. At trial, Yang testified
Russo had told him in August or September that Lopez was not
submitting her call logs or the logs were deficient. Yang did not
check to see if this was true.
The actual paperwork produced by CWG for the
termination stated Lopez was terminated for “insufficient job
performance . . . no effort put towards duties.” Russo, however,
gave varying reasons for the termination throughout the
pendency of this litigation. In his deposition, Russo stated Lopez
was terminated “mainly because her performance was slipping.”
Lopez’s “sales numbers were going down . . . I mean, that was the
5
main reason, was her sales numbers were going down.” He did
not recall communicating any other reason to her.
Before the first trial, Lopez’s sister Marisela Lopez, who
also worked at CWG, obtained documents from CWG showing
Lopez’s sales numbers were not declining. Russo then testified at
the first trial that Lopez was terminated because “the effort put
in towards gaining more business and being a salesperson was
declining.”
In the second trial, Russo testified he terminated Lopez
because she “was not meeting her ability to cold call and to close
new customers.” He claimed he ran a report with orders pending
in her name and went through each account to verify his
impression Lopez was not performing well. However, he could
not produce documentation of this report for the court. Russo
also claimed Lopez’s call logs had much less detail than Vasquez’s
and Amaya’s call logs. When the court asked to see the call logs,
Russo said he did not have them.
II. Lopez’s Cancer
At the first trial Lopez testified she lost her hair due to
chemotherapy, wore a wig or scarves to work, and walked more
slowly. Former co-worker Vasquez testified Lopez “was losing
weight, she was pale, she was using scarves.” Her physical
appearance was consistent with having cancer. She seemed a
little sicker toward the last few months of her employment. It
took her longer to walk from her desk to the warehouse. Lopez’s
sister Marisela testified Lopez lost weight, lost her hair and wore
wigs or scarves due to the chemotherapy. She walked a little bit
more slowly.
6
Lopez sat side by side in cubicles with Vasquez, Russo, and
Amaya, the other sales representative. Casar came to the sales
area at times to speak to Russo. Yang walked through the sales
area to reach one of the executive offices three to four times a
day.
Vasquez discussed Lopez’s cancer with his coworkers when
Russo was present in the cubicles. Further, Vasquez testified
Russo told him and Amaya that Lopez had cancer. This occurred
about two to three months before Lopez was fired.
Marisela testified other coworkers would speak to her
about Lopez having cancer when they noticed she was wearing
wigs. Marisela believed it was common knowledge in the office
that Lopez had cancer.
Marisela herself discussed Lopez’s medical condition with
Casar and Russo. She testified that when Lopez took medical
leave, Marisela told Casar Lopez “had cancer, that she was going
to need chemo after [her] surgery, that she was going to lose all of
her hair.” She told Casar this “so he could let [Russo] know about
[Lopez’s condition].” Casar told her not to worry. Marisela did
not directly discuss Lopez’s cancer with Russo, but she told him
that when Lopez returned, “she was going to need chemo.”
Russo nevertheless denied “knowing” Lopez had cancer.
Even when asked “You had no idea that she had cancer?” Russo
replied, “No.” It was only under detailed questioning by the court
that Russo acknowledged he had heard “office banter” that Lopez
had cancer and so had a “suspicion” she had cancer. He still
claimed not to have seen anything about her appearance
suggestive of cancer. Russo insisted all he “knew” was that Lopez
took a medical leave and then took time off for medical
7
appointments. He claimed not to remember Marisela telling him
Lopez had chemotherapy appointments.
Cesar, too, denied “knowing” Lopez had cancer. The trial
court explicitly reminded Cesar he was under oath and then
asked him if it was his testimony “under oath” that he did not
know Lopez had cancer. Cesar again disavowed knowledge. The
court then asked why Cesar believed Lopez needed medical leave
“for three months? A cold?” Cesar replied, “In the back of my
mind, I thought it was cancer.” Cesar denied Marisela told him
Lopez would need chemotherapy appointments. Eventually,
Cesar acknowledged he “assumed” Lopez had cancer “by the way
she looked.” He noticed she “was losing weight and she wear[s]
wigs at times.”
Yang was adamant he did not know or suspect Lopez had
cancer. He assumed she had a serious medical condition because
she took a medical leave. He acknowledged noticing she lost
weight and wore scarves after returning from her leave.
III. Lopez’s Life After CWG
About four months after she was terminated from CWG,
Lopez found another job in sales. In August 2014, Lopez’s new
company changed its pay structure and she no longer received
commissions. She left that position. Although Lopez looked for
another position, she could not find one. Marisela testified Lopez
looked sick at this time.
Between August 2014 and September 2015, Lopez lived
with her “husband” who was employed. She was a homemaker
and raised her 14-year-old daughter. For reasons that are not
clear, at some point after September 2015, Lopez had to move out
of her apartment and into her mother’s garage. It appears she
8
was quite sick when she moved. Marisela believed that by
October 2015, Lopez was too sick to work at all.
IV. Holdings’s Role in the Litigation
Before trial began, plaintiffs learned CWG had been
dissolved in 2015, and the company using the dba The Wheel
Group was Holdings. Plaintiffs filed a motion to add Holdings as
a Doe defendant. At the conclusion of the liability phase, the
trial court added Holdings as a judgment debtor as an alter ego of
or successor to CWG. This made Holdings liable for the $15,057
in economic damages awarded to Lopez and any punitive
damages.
The trial court found CWG’s conduct warranted punitive
damages and scheduled a trial to take evidence relevant to the
amount of the award. The court permitted plaintiffs to introduce
evidence of Holdings’s financial condition. The court did not
allow evidence of CWG’s prior financial condition. The court also
heard testimony from Marisela about her sister’s emotional
distress due to her wrongful termination.
The court found Lopez suffered emotional distress damages
in the $100,000 to $150,000 range which were not recoverable
due to section 377.34. Taking that harm into account, the trial
court awarded plaintiffs $500,000 in punitive damages.
DISCUSSION
I. The Punitive Damages Award Is Not Constitutionally
Excessive.
“The due process clause of the Fourteenth Amendment to
the United States Constitution places constraints on state court
awards of punitive damages. (See State Farm Mut. Automobile
9
Ins. Co. v. Campbell (2003) 538 U.S. 408, 416–418 [155 L.Ed.2d
585, 123 S.Ct. 1513] (State Farm); BMW of North America v. Gore
(1996) 517 U.S. 559, 568 [134 L.Ed.2d 809, 116 S.Ct. 1589]
(BMW).) We recently explained the basis of these constraints:
‘The imposition of “grossly excessive or arbitrary” awards is
constitutionally prohibited, for due process entitles a tortfeasor to
“ ‘fair notice not only of the conduct that will subject him to
punishment, but also of the severity of the penalty that a State
may impose.’ ” [Citation.]’ (Simon v. San Paolo U.S. Holding
Co., Inc. (2005) 35 Cal.4th 1159, 1171 [29 Cal.Rptr.3d 379, 113
P.3d 63] (Simon).)” (Roby v. McKesson Corp. (2009) 47 Cal.4th
686, 712 (Roby).)
“In State Farm, the high court articulated ‘three
guideposts’ for courts reviewing punitive damages: ‘(1) the
degree of reprehensibility of the defendant's misconduct; (2) the
disparity between the actual or potential harm suffered by the
plaintiff and the punitive damages award; and (3) the difference
between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.’ (State
Farm, supra, 538 U.S. at p. 418; see also BMW, supra, 517 U.S.
at p. 575.)” (Roby, supra, 47 Cal.4th at p. 712.)
We review a punitive damages award “de novo, making an
independent assessment of the reprehensibility of the defendant’s
conduct, the relationship between the award and the harm done
to the plaintiff, and the relationship between the award and civil
penalties authorized for comparable conduct. [Citations.] This
‘[e]xacting appellate review’ is intended to ensure punitive
damages are the product of the ‘ “ ‘application of law, rather than
a decisionmaker's caprice.’ ” ’ ” (Simon, supra, 35 Cal.4th at
p. 1172.) “[F]indings of historical fact made in the trial court are
10
still entitled to the ordinary measure of appellate deference.”
(Ibid.)
Appellants contend the punitive damages are excessive
because their conduct was not particularly reprehensible; the
punitive damages are 33.3 times the amount of the economic
damages award; and certain repealed or inapplicable civil
penalties weigh in favor of a lower punitive damages award.
We agree that a punitive damages award based on such a
large multiplier would be troubling. Plaintiffs contend, however,
that the comparison should be to the total harm caused by
appellants, which included $100,000 to $150,000 in noneconomic
harm plaintiffs could not recover after Lopez’s death due to the
provisions of section 377.34.2 Such a comparison would result in
a multiplier of 3.3 to 5. As did the Court in Simon, we consider
this claim of actual harm first.
A. The Trial Court Properly Considered Harm to Lopez
Beyond Her Economic Damages.
As the California Supreme Court explained in Simon:
“United States Supreme Court precedents appear to contemplate,
in some circumstances, the use of measures of harm beyond the
compensatory damages. Thus in State Farm, discussing the
second BMW ‘guidepost,’ the high court spoke repeatedly of a
2 Section 377.34 provides: “In an action or proceeding by a
decedent’s personal representative or successor in interest on the
decedent’s cause of action, the damages recoverable are limited to
the loss or damage that the decedent sustained or incurred before
death, including any penalties or punitive or exemplary damages
that the decedent would have been entitled to recover had the
decedent lived, and do not include damages for pain, suffering, or
disfigurement.”
11
proportionality between punitive damages and the harm or
‘potential harm’ suffered by the plaintiff. (State Farm, supra,
538 U.S. at pp. 418, 424.) At another point (id. at p. 426), the
court referred to the relationship between punitive damages and
both ‘the amount of harm’ and ‘the general damages recovered,’
impliedly recognizing that these two are not always identical.
More explicitly, in State Farm the high court reiterated its
recognition in BMW that in some cases compensatory damages
are not the definitive quantification of harm because ‘ “the injury
is hard to detect or the monetary value of noneconomic harm
might have been difficult to determine ” ’ (State Farm, supra, at
p. 425, quoting BMW, supra, 517 U.S. at p. 582.) [¶] State
Farm’s reference to potential harm echoed the high court’s earlier
decision in TXO Production Corp. v. Alliance Resources Corp.
[(1993)] 509 U.S. 443 (TXO).” (Simon, supra, 35 Cal.4th at
p. 1173.) As the Simon Court recognized, “[i]n the wake of TXO,
BMW and State Farm, a large number of federal and state courts
have, in a variety of factual contexts, considered uncompensated
or potential harm as part of the predicate for a punitive damages
award.” (Simon, at p. 1174.)
Simon discussed with apparent approval two California
cases which considered unrecoverable damages for emotional
distress in assessing the relationship between the plaintiff’s
compensatory damages award and the amount of punitive
damages. The Court cited “Neal v. Farmers Ins. Exchange
[(1978)] 21 Cal.3d 910, in which a statute barred recovery of
damages actually caused by the defendant’s tortious acts. In that
insurance bad faith case, the plaintiff died before judgment,
precluding her estate’s recovery of damages for emotional
distress. (Id. at p. 920, fn. 3; see Code Civ. Proc., § 377.34
12
(formerly Prob. Code, § 573).) Considering it ‘likely that absent
this limitation plaintiff would have recovered a substantial
additional amount in compensation for emotional distress,’ this
court held the disparity between the relatively small
compensatory damages award and the significant award of
punitive damages did not require nullification of the latter under
state law. (Neal v. Farmers Ins. Exchange, supra, at p. 929; see
also Romo v. Ford Motor Co. [(2003)] 113 Cal.App.4th [738,]
760-761 [reaching similar conclusion under State Farm].)
Farmers’ bad faith conduct had actually caused Mrs. Neal
substantial emotional distress; her estate was barred from
recovering such damages only by Probate Code former
section 573.” (Simon, supra, 35 Cal.4th at pp. 1176–1177.)
That is precisely the situation in this case. The trier of fact
found appellants caused Lopez significant noneconomic damages
which plaintiffs could not recover due to section 377.34.
Appellants contend that the above-quoted statements from
Simon are dicta. Perhaps.3 They also contend that Lopez has not
3 “ ‘Dicta consists of observations and statements
unnecessary to the appellate court's resolution of the case.’”
(Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158.)
The Court in Simon first considered whether it was permissible
to consider the potential or uncompensated harm suffered by a
plaintiff as the predicate for a punitive damages award and then,
after finding support for that proposition in Supreme Court
decisions, determined that “the potential harm that is properly
included in the due process analysis is ‘ “harm that is likely to
occur from the defendant’s conduct.” ’ ” (Simon, supra, 35 Cal.4th
at pp. 1173-1174, 1177, citing TXO, supra, 509 U.S. at p. 460.)
The Court then found Simon’s potential lost profits did not meet
13
cited any California case since Simon which has considered
uncompensated damages as the predicate for a punitive damages
award. The reverse is also true: appellants have not cited any
California case since Simon reversing a punitive damages award
because it was predicated on uncompensated damages.
Appellants do not point to any flaw in the Simon court’s
reasoning, or any inconsistency with U.S. Supreme Court
decisions, and we see none, at least as that reasoning is applied
to the case of an individual who suffers noneconomic damages but
dies before trial in California.
Noneconomic damages are recoverable in many actions,
including wrongful termination actions. Thus, when appellants
terminated Lopez, they were on notice they would be responsible
for both economic and noneconomic damages if she successfully
sued them for wrongful termination. They accordingly had fair
notice that if their conduct warranted punitive damages, the
amount of those damages would be based on Lopez’s total
compensatory damages, both economic and noneconomic.
The trial court made clear that if Lopez had survived, the
court would have awarded her substantial noneconomic damages.
The only reason that appellants were not liable for those
damages was Lopez’s untimely death and a provision of
California procedural law. There is nothing in the due process
clause or the reasoning of BMW, TXO or State Farm which
suggests that a defendant’s wrongful actions are less culpable, or
this due process standard. (Simon, at p. 1179.) It is not clear
that the Simon Court’s initial discussion of the constitutional
permissibility of considering potential or uncompensated harm
was unnecessary to the resolution of the case.
14
should be punished less severely, simply because the plaintiff
dies before trial.
Appellants contend that even if it were acceptable to
consider noneconomic damages, there is no reliable evidence that
Lopez suffered noneconomic damages because apart from
“Lopez’s sister’s unlicensed and layperson opinion testimony that
Ms. Lopez was ‘sad’ and ‘depressed’ after being terminated, there
is no evidence of any psychological examinations, treatment,
medications or disability.”
Appellants provide no legal authority requiring expert
testimony to support non-economic damages. Generally, the law
is to the contrary. “Numerous cases approve the award of
emotional distress damages based on the testimony of nonexpert
witnesses.” (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1096.)
“The law in this state is that the testimony of a single
person, including the plaintiff, may be sufficient to support an
award of emotional distress damages.” (Ibid.)
Appellants also understate the lay evidence presented at
trial. Lopez herself testified at the first trial that she was in
“disbelief” and felt “betrayed” by the termination. In the punitive
damages phase of this trial, the trial court agreed that “[b]eing
fired for some bogus reason, obviously, can create emotional
distress for her as [opposed to] leaving on her own terms. So that
is where . . . the non-economic damages that were not awarded to
her were justified and they should think about that as a factor” in
punitive damages. Thus the trial court, sitting as the trier of
fact, agreed to hear additional testimony on the issue of
emotional distress from “any . . . witnesses . . . that have first-
hand knowledge of what they saw and what they observed
comparing before and after.”
15
Plaintiffs’ counsel offered the testimony of Lopez’s sister
Marisela who testified: “I knew my sister and I knew how she
was feeling and I knew what she told me.” Marisela explained
that before Lopez was terminated, she was a very happy, “very
going out person.” She loved her job. Marisela observed Lopez
right after she was terminated and she was “sad.” She told
Marisela that she believed that she had been fired because she
was ill and she was “devastated.” In the days and weeks after
the termination, she “became stressed very emotionally” and she
was “depressed” and “sad” because she was fired due to her
illness. After Lopez was fired and she became depressed, she
“didn’t want to do anything. She wanted to stay home all the
time. She didn’t want to talk to nobody.” Lopez expressed
“financial worries.” She told her sister that she “couldn’t sleep.”
Even after Lopez got another job, she was still depressed about
being fired by appellants.
The trial court expressly found Marisela to be “a very
credible witness.” The testimony of Lopez and Marisela is more
than sufficient evidence to support the trial court’s finding that
“the actual harm suffered by the decedent (if she had been alive
at the time of trial, and hence, would have been allowed to
recover ‘non-economic’ damages) was in the total range of
$100,000 to $150,000 for all compensatory damages.” It should
be emphasized that the trial court was the trier of fact in this
case, and was not speculating about what a jury might have
awarded Lopez if she had lived through the first trial. The court
was stating what it would have done, based on the evidence in
the case, if such damages had not been barred after Lopez’s death
by section 377.34.
16
Appellants alternatively insist that there is no evidence
that Lopez “was emotionally impacted by her termination to any
greater degree than what any employee would experience after
termination for performance related or economic reasons.”
Appellants appear to be suggesting a very odd standard, which
would hold employers liable for damages caused by wrongful
termination of an employee only if the employee suffered
emotional distress exceeding that suffered by “any” employee who
was lawfully terminated. Appellants do not support this
suggestion with cogent argument or legal authority. They have
forfeited this claim. (United Grand Corp. v. Malibu Hillbillies,
LLC (2019) 36 Cal.App.5th 142, 146 (United Grand) [“ ‘appellant
must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record’ ”].)
Certainly, there is no requirement that a wrongfully
terminated employee show she suffered more economic damages
than a lawfully terminated employee before she can recover
economic damages. There is, for example, no requirement that
she be unemployed for longer than a lawfully terminated
employee. The law does not appear to set such a rigid standard
for noneconomic damages either. (See, e.g., Loth v. Truck-A-Way
Corp. (1998) 60 Cal.App.4th 757, 768 (Loth) [there is no set
“standard for determining pain and suffering damages [citation],
[and] no expert may supply a formula for computing . . . the value
of the loss of enjoyment of life”]; CACI No. 3905A [“No fixed
standard exists for deciding the amount of these noneconomic
damages. You must use your judgment to decide a reasonable
amount based on the evidence and your common sense”].)
17
To the extent appellants contend there is insufficient
evidence to support the amount of the noneconomic damages, the
amount of such damages is left to the sound discretion of the trier
of fact, here the court. (See, e.g., Beagle v. Vasold (1966)
65 Cal.2d 166, 172 [“ ‘[t]ranslating pain and anguish into dollars
can, at best, be only an arbitrary allowance, and not a process of
measurement’ ”; the trier of fact must “ ‘allow such amount as in
[its] discretion [it considers] reasonable’ ” for that purpose]; Loth,
supra, 60 Cal.App.4th at p. 768; see also CACI No. 3905A [“No
fixed standard exists for deciding the amount of these
noneconomic damages. You must use your judgment to decide a
reasonable amount based on the evidence and your common
sense”].) Appellants have failed to offer any argument that
setting the amount of non-economic damages here was an abuse
of discretion, that is, outside the bounds of reason and common
sense.
B. There Are No Comparable Civil Penalty Provisions.
We skip next to the third guidepost, which directs us to
“consider ‘the difference between the punitive damages awarded
by the jury and the civil penalties authorized or imposed in
comparable cases.’ ” (Roby, supra, 47 Cal.4th at p. 718.) “ ‘The
rationale for this consideration is that, if the penalties for
comparable misconduct are much less than a punitive damages
award, the tortfeasor lacked fair notice that the wrongful conduct
could entail a sizable punitive damages award.’ ” (Grassilli v.
Barr (2006) 142 Cal.App.4th 1260, 1290.)
Appellants contend 1) there are no applicable civil penalties
in comparable cases; and 2) we should consider repealed and
inapplicable penalties.
18
Appellants point to Government Code former section 12970
which, when Roby was decided, authorized the California Fair
Employment and Housing Commission to assess a fine of up to
$150,000 against an employer found to violate the California Fair
Employment Housing Act if the plaintiff pursued her claims
administratively before the commission. (Roby, supra, 47 Cal.4th
at pp. 718–719.) In 2013, the California Legislature eliminated
the Fair Employment and Housing Commission, repealed section
12970, and did not replace the civil penalty authorized by section
12970 with a comparable one. (See Sen. Bill No. 1038 (2011-2012
Reg. Sess.) § 50.) We note the Court in Roby approved a punitive
damages award of almost $2 million dollars despite the cap
on administrative fines still in effect during the pendency of that
action. (See Roby, at p. 719.)
Appellants also point to the $50,000 limit on punitive
damages contained in Title VII of the Civil Rights Act.
(42 U.S.C.S § 1981a(b)(3)(A).) Lopez did not bring a claim under
that law, and appellants do not discuss the substantive
provisions of that law or how it would apply to Lopez’s
circumstances. Accordingly, we do not consider it. (See Hodjat v.
State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th
1, 10 (Hodjat) [“appellant is required to not only cite to valid legal
authority, but also explain how it applies in his case”].)
Because appellants have not identified any civil penalty
that could be imposed in a comparable case, the third guidepost is
not relevant in determining whether the punitive damages award
in this case exceeds the constitutional limit. (See Nickerson v.
Stonebridge Life Ins. Co. (2016) 5 Cal.App.5th 1, 23.)
19
C. Appellants’ Conduct Was Reprehensible.
Although we consider the second guidepost last, the degree
of reprehensibility of a defendant’s conduct is the most important
of the three. The trial court found appellants’ conduct to be
“despicable and reprehensible.” Appellants contend their conduct
does not support a finding of a high degree of reprehensibility.
We find a medium high degree of reprehensibility.
“On this question, the high court instructed courts to
consider whether ‘[1] the harm caused was physical as opposed to
economic; [2] the tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of others; [3] the target
of the conduct had financial vulnerability; [4] the conduct
involved repeated actions or was an isolated incident; and [5] the
harm was the result of intentional malice, trickery, or deceit, or
mere accident.’ ” (Roby, supra, 47 Cal.4th at p. 713.)
On appeal, “ ‘determining the “degree of reprehensibility”
ultimately involves a legal conclusion.’ ” (Simon, supra,35 Cal.4th at p. 1172, quoting Leatherman Tool Group, Inc. v.
Cooper Industries, Inc. (9th Cir. 2002) 285 F.3d 1146, 1150.)
“[F]indings of historical fact made in the trial court are still
entitled to the ordinary measure of appellate deference.” (Simon,
at p. 1172.)
1. First factor
Harm to an employee’s emotional and mental health is
considered physical harm within the meaning of the first factor.
(Roby, supra, 47 Cal.4th at p. 713.) The trial court found Lopez
suffered such harm, and we have determined the trial court’s
20
finding is supported by substantial evidence.4 This evidence
shows that Lopez was deeply affected by CWG’s wrongful conduct
and essentially lost her enjoyment of life and became a different
person. Although we do not agree with appellants that some
physical manifestation of emotional harm is required, we note
that there was evidence that Lopez experienced difficulty
sleeping, which is a physical manifestation of her emotional harm
(and one which results in physical harm to a person). Thus, this
factor is present and weighs in favor of a high assessment of
reprehensibility.
2. Second factor
When it is objectively reasonable to assume an employer’s
wrongful conduct toward an employee will affect the employee’s
emotional well-being, that conduct will be found to have
“ ‘evinced an indifference to or a reckless disregard of the health
or safety of others’ ” within the meaning of the second factor.
(Roby, supra, 47 Cal.4th at p. 713.) We find it objectively
reasonable to assume that falsely telling a hard-working
competent employee that she is being fired for poor performance
would affect the employee’s emotional well-being. As the trial
court put it: “Being fired for some bogus reason, obviously, can
create emotional distress.” The conduct is particularly callous
when the person is suffering from cancer. Thus, this factor is
present as well and supports a high assessment of
reprehensibility.
4 We would reach the same conclusion if we independently
reviewed the evidence in this case.
21
3. Third factor
When the employee is a relatively low level one, she will
certainly be financially vulnerable. (Roby, supra, 47 Cal.4th at
p. 713 [low-level employee who quickly depleted her savings and
lost her medical insurance as a result of termination “ ‘had
financial vulnerability.’ ”] Here, Lopez was a fairly low level
employee. She sought new employment after her termination by
appellants despite her illness because she needed income and
health insurance. Appellants are correct that Lopez received
financial assistance from family members, but this underlines
Lopez’s financial vulnerability: it supports an inference that her
own financial resources were insufficient to support herself after
her termination. Similarly, Lopez’s financial condition may have
improved some ten months after she was fired by CWG, when she
was able to quit her low-paying new job and be a homemaker, but
this improvement was temporary. Lopez spent the end of her life
sleeping in her mother’s garage.5 Thus, Lopez had a fair degree
of financial vulnerability when she was terminated by appellants,
which supports a high assessment of reprehensibility.
4. Fourth factor
There is some ambiguity in the fourth factor, which asks if
“the conduct involved repeated actions or was an isolated
incident.” There was no evidence that any other employee was
wrongfully terminated by CWG, and so in that sense there were
5 Appellants are correct they cannot reasonably be held
accountable for whatever personal circumstances resulted in
Lopez losing financial support from her “husband.” We include
this information to show that Lopez was and remained
financially vulnerable without employment.
22
no repeated actions by CWG. At the same time, this cannot be
viewed as an isolated incident within the company by a single
employee. Russo did not act alone. CWG’s policy required
acquiescence by human resources in the termination. It also
required Yang’s approval. Thus, both Casar and Yang
separately acted in the wrongful termination. Ultimately,
however, this factor does “not support a high assessment of
reprehensibility.” (See Simon, supra, 35 Cal.4th at p. 1180 [while
“conduct could be characterized as more than a single isolated
incident, as the evidence showed deceptive conduct . . . spanning
several weeks, the tortious act on which liability was based was a
single false promise . . . made in the letter” there was no evidence
defendant had acted similarly toward other potential buyers and
so conduct “did not support a high assessment of
reprehensibility”].) Given the involvement of two high ranking
officers of CWG, who each independently approved or acquiesced
in the termination, this factor does support an assessment of
reprehensibility, although not a high assessment.
5. Fifth factor
The trial court made factual findings that appellants knew
Lopez had cancer, Russo fired her for that reason but falsely told
her she was being fired for performance based reasons, and
Russo, Casar, and Yang lied about their knowledge of Lopez’s
cancer to cover up the wrongful termination.
Evidence that an employer offered a pretextual explanation
to justify its wrongful termination may support a finding of
malice or oppression. (See Cloud v. Casey (1999) 76 Cal.App.4th
895, 912 [employer’s use of a false explanation to hide gender-
based termination supported punitive damages award]; Stephens
v. Coldwell Banker Commercial Group, Inc. (1988)
23
199 Cal.App.3d 1394, 1403 [employer’s fabricated criticism to
justify wrongful termination supported punitive damages award],
disapproved on another ground in White v. Ultramar, Inc. (1999)
21 Cal.4th 563, 574, fn. 4.)
The court found credible Vasquez’s testimony that Russo
told him Lopez had cancer (demonstrating Russo’s knowledge)
and testimony by Marisela that she told Casar Lopez had cancer.
Yang admitted he knew Lopez had a serious medical condition
and it was undisputed he saw her several times a day. There was
substantial evidence Lopez’s physical appearance changed in a
way suggesting to her coworkers that she had cancer. The court
found not credible appellants’ testimony that they did not know
Lopez had cancer: “clearly, she was dying of cancer . . . and they
lied about it and they tried to cover it up.”
Appellants argue Russo, Casar and Yang were not
dishonest but simply “unsophisticated in public speaking and
nervous in court, [and] answered questions [about their
knowledge of Lopez’s cancer] at trial very literally.” The trial
court had ample opportunity to observe the demeanors of these
witnesses and concluded otherwise. We do not reweigh
credibility determinations, even when the trier of fact is making
decisions under the clear and convincing standard of proof.
Appellants also contend there is no evidence that Russo
viewed Lopez negatively or with malice due to her condition.
Appellants ignore Lopez’s testimony that Russo conveyed his
unhappiness with her chemotherapy appointments, complained
she was walking too slowly at work, and treated her more
harshly and unfairly than the other sales representatives after
she returned from medical leave. Vasquez corroborated Russo’s
negative comments about Lopez’s slow walking; Vasquez’s
24
testimony showed Russo treated Lopez more harshly than he did
Vasquez.
Appellants argue the evidence shows Russo’s behavior was
simply an attempt to increase his department’s performance due
to pressure. They further claim the evidence supports Russo’s
claims that Lopez was performing poorly.
Russo’s changing emphasis on the type of poor performance
given by Lopez, as described above in the background section,
undercuts his credibility. The documentary evidence, or lack of
such evidence, also undermines this claim. CWG acknowledges
on appeal that its own data showed Lopez had high sales
numbers but then it argues the data is unreliable. Russo claimed
to have run a report with orders pending in her name and went
through each account to verify his impression Lopez was not
performing well. He could not, however, produce documentation
of this report for the court. CWG was similarly unable to produce
any call logs for Lopez which would have corroborated Russo’s
claim that her call logs had much less detail than Vasquez’s and
Amaya’s call logs.
We defer to the trial court’s express and implied credibility
findings and resolution of conflicting evidence on this topic. The
court rejected Russo’s testimony that Lopez was performing
poorly, in part because of the lack of documentation. We find
CWG did act with intentional malice and so the fifth factor is
present and supports a high assessment of reprehensibility.
D. The Punitive Damages Award Is Constitutionally
Permissible Given the Reprehensibility of Appellants’
Conduct and the Emotional Harm to Lopez.
As we have just discussed, four of the factors support a
high assessment of reprehensibility and one supports a
25
reprehensibility assessment, but not a high one. Appellants
contend, correctly, that case law contains examples of more
reprehensible behavior. Certainly, CWG’s behavior is not the
most reprehensible conduct to come before the courts. That does
not mean that it is not more reprehensible than average, or put
differently, at least medium high.
The trial court calculated reprehensibility as high as 80 to
90 out of 100. We note the trial court, in discussing its finding
that CWG’s conduct was reprehensible and deserving of punitive
damages, stated: “I don’t think I have ever done that as a Judge,
been on the bench for ten years so it takes a lot to get me to that
point and they got me there, certainly, by clear and convincing
evidence.”
Given the medium high level of CWG’s reprehensibility,
and the unusual situation where plaintiffs could not recover for
Lopez’s emotional distress, we have no difficulty in concluding
the $500,000 is constitutionally permissible. Lopez’s actual harm
was in the $115,057 to $165,057 range. Taking the mid-point of
$140,057 results in a multiplier of 3.5. That is not excessive in
light of CWG’s despicable conduct toward a seriously and
ultimately terminally ill woman.
II. Appellants Have Not Shown the Damages Are
Excessive Under California Law.
Appellants contend the punitive damages are excessive
under California law because “the trial court’s 33.3:1 ratio
punitive damages award was the product of unchecked passion
and prejudice, as is demonstrated above and below.” As we have
explained, it is the ratio between Lopez’s actual harm and the
punitive damages which should be considered, and that
comparison yields a ratio of 3.5:1.
26
Any claim that appellants have demonstrated unchecked
passion and prejudice apart from the ratio itself is forfeited.
Appellants’ vague reference to “above and below” is not sufficient
to preserve the claim. (See Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246.) Although it is not our task “ ‘to search the record on
[our] own’ ” when “ ‘a party fails to support an argument with the
necessary citations to the record’ ” (Id. at p. 1246), we note
briefly that our reading of the record has not disclosed any
improper passion or prejudice on the part of the trial court.
III. Appellants Have Forfeited Their Claim That the Trial
Court Erred in Considering Holdings’s Financial
Condition in Assessing Punitive Damages.
Appellants contend the trial court erred in considering the
wealth of Holdings, which they describe as merely a judgment
debtor. They contend only CWG was a defendant in the liability
phase, and so only CWG’s wealth could properly be considered in
determining the amount of punitive damages. They contend,
without elaboration, that “[e]lementary notions of fairness”
require that a person receive “fair notice” of both the conduct that
will subject him to punishment and the severity of that
punishment. Alternatively and more generally they also contend
that the appropriate time to measure CWG’s wealth was at the
time of the termination or the first trial.
Appellants fail to acknowledge that although the trial court
stated it was adding Holdings as a judgment debtor at the end of
the liability phase, the court did so because Holdings was an alter
ego of CWG and/or its successor in interest.
As an alter ego of CWG, Holdings had notice of the liability
proceedings. “Judgments are often amended to add additional
judgment debtors on the grounds that a person or entity is the
27
alter ego of the original judgment debtor. [Citations.] This is an
equitable procedure based on the theory that the court is not
amending the judgment to add a new defendant but is merely
inserting the correct name of the real defendant. [Citations.]
‘Such a procedure is an appropriate and complete method by
which to bind new individual defendants where it can be
demonstrated that in their capacity as alter ego of the
corporation they in fact had control of the previous litigation, and
thus were virtually represented in the lawsuit.’ ” (NEC
Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778.)
With respect to Holdings’s notice of liability for punitive
damages, it is long established law in California that a
corporation formed by a consolidation or merger succeeded by
operation of law to all the obligations and liabilities of the
constituent corporations, including liability for punitive damages.
(Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289,
304–305.) The same is true for an asset purchase by a
corporation which is a de facto merger. (Marks v. Minnesota
Mining & Manufacturing Co. (1986) 187 Cal.App.3d 1429,
1434-1435.) More generally, a purchaser of assets has successor
liability if “ ‘(1) there is an express or implied agreement of
assumption, (2) the transaction amounts to a consolidation or
merger of the two corporations, (3) the purchasing corporation is
a mere continuation of the seller, or (4) the transfer of assets to
the purchaser is for the fraudulent purpose of escaping liability
28
for the seller’s debts.’ ” (Cleveland v. Johnson (2012) 209
Cal.App.4th 1315, 1327 (Cleveland).)6
Although appellants cite BMW, State Farm, and Simon for
these general propositions, they make no effort to apply these
propositions to a situation involving an alter ego or successor
liability. We are not bound to develop appellants’ arguments for
them, and we “may and do ‘disregard conclusory arguments that
. . . fail to disclose the reasoning by which the appellant reached
the conclusions he wants us to adopt.’ ” (United Grand, supra,
36 Cal.App.5th at p. 153; Hodjat, supra, 211 Cal.App.4th at p, 10
[“appellant is required to not only cite to valid legal authority,
but also explain how it applies in his case.”].)
“[S]uccessor liability, like alter ego and similar principles,
is an equitable doctrine. As with other equitable doctrines, ‘it is
appropriate to, examine successor liability issues on their own
unique facts’ and ‘[c]onsiderations of fairness and equity apply.’ ”
(Cleveland, supra, 209 Cal.App.4th at p. 1330.) Given the “the
factual and equitable nature of the successor liability doctrine; it
is probable that no single factual element, standing alone, would
establish or negate successor liability.” (Id. at p. 1334.)
6 California decisions holding that a corporation acquiring
the assets of another corporation is the mere continuation of the
latter require a showing that “ ‘(1) no adequate consideration was
given for the predecessor corporation’s assets and made available
for meeting the claims of its unsecured creditors; [and/or] (2) one
or more persons were officers, directors, or stockholders of both
corporations.’ ” (Cleveland, supra, 209 Cal.App.4th at p. 1327.)
“[Th]e principles underlying the ‘mere continuation’ theory of
successor liability are not confined to corporations.” (Id. at
p. 1329.)
29
Appellants have not made any legal arguments or provided
relevant citations to the record to show that the trial court erred
when it determined Holdings was an alter ego and/or successor of
CWG. Appellants simply assert Holdings “is not the same
organization as” CWG. Their only record citation is to Yang’s
testimony during the punitive damages phase of the trial, well
after the trial court had added Holdings as a judgment debtor.
As the trial court remarked when counsel began to ask questions
of Yang about the relationship between CWG and Holdings
during the punitive damages phase, “the record was already
made, I added them on.” That record, not incidentally, includes
testimony by Yang during the liability phase of the trial, given
before the trial court made its ruling adding Holdings; appellants
have elected not to include the transcript of that testimony as
part of the record on appeal.7
In adding Holdings as a judgment debtor the trial court
stated “the recently named Doe defendant or defendants are
merely the successor corporate entities of the now-defunct
corporate defendant CIA Wheel Group. They are essentially the
same exact company with a new corporate name. It would be a
manifest injustice not to allow these Doe defendants to be
included as a judgment debtor in this case.” The trial court later
7 The court’s minute orders show Yang testified on July 11,
2018. Appellants, however, have not provided this court with the
reporter’s transcript of the July 11, 2018, proceedings. To be
clear, this is not a situation where the copy for that date has gone
missing. The transcript for July 10, 2018 is labelled volume 3 of
5 and the transcript for July 19, 2018 is labelled volume 4 of 5.
The designation of record filed by appellants does not designate
the July 11 transcript as part of the record on appeal.
30
elaborated that “everything” was transferred from CWG to
Holdings: “they took over all the assets in all the stores and the
same management team.” Based on the record on appeal, the
evidence cited by the court could only have come from the
testimony of Yang. The only other witnesses were Russo and
Casar. Casar expressly testified that he was unaware of the
ownership of Holdings; Russo was not questioned on this topic.
“We should not have to point out to counsel who should be
well-versed in appellate procedure that the appellant has the
burden of affirmatively demonstrating error by providing an
adequate record.” (Mountain Lion Coalition v. Fish & Game
Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) “To the extent the
record is incomplete, we construe it against [them].” (Sutter
Health Uninsured Pricing Cases (2009) 171 Cal.App.4th
495, 498.) Thus, we construe appellants’ failure to provide a
complete transcript of Yang’s liability phase testimony against
them, and presume it provides the overwhelming evidence
referenced by the court in its ruling.8
8 We note a few pages of Yang’s July 11, 2018 testimony are
found in the record on appeal. They are attached as Exhibit F to
the declaration of Stacie Yee in support of appellants’ motion for
a new trial. Ms. Yee is currently appellants’ counsel. A few more
pages are found as Exhibit E to plaintiffs’ opposition to the new
trial motion. These brief snippets of testimony suggest the Yangs
retained a great deal of control over the operations of Holdings.
Yang testified his father was the CEO of CWG and then became
the CEO of Holdings. During the penalty phase, Yang further
testified his father was transitioning from being the CEO to being
the “chairman.” Yang stated his father was able to do that
because “he trusts me to run the business.”
31
As for appellants’ claim that the financial condition of a
defendant should be measured at the time of the wrongful
conduct or the first trial of the matter, appellants have forfeited
this claim by failing to provide any legal authority or argument to
support this contention. (United Grand, supra, 36 Cal.App.5th at
p. 146.) We note there is no logical basis to use the first trial as a
basis for anything as Lopez died before the trial was complete
and the court declared a mistrial. This court has certainly
permitted the consideration of a defendant’s financial condition
at a later time than the date of the wrongful conduct. As we have
explained: “In the end, ‘[w]hat is required is evidence of the
defendant’s ability to pay the damage award.’ ” (Green v. Laibco,
LLC (2011) 192 Cal.App.4th 441, 453.)
IV. Appellants Have Forfeited Their Claims Based on
Civil Code section 3294.
Appellants contends plaintiffs did not prove either the
wrongful conduct required by Civil Code section 3294, subdivision
(a) or the authorization or ratification required by Civil Code
section 3294, subdivision (b). A plaintiff may recover punitive
damages only “where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud,
or malice.” (Civ. Code, § 3294, subd. (a).) In addition, “[a]n
employer shall not be liable for [punitive] damages . . . based
upon acts of an employee of the employer, unless the employer . .
. authorized or ratified the wrongful conduct . . . . With respect to
a corporate employer, the . . . authorization, [or] ratification . . .
must be on the part of an officer, director, or managing agent of
the corporation.” (Id., subd. (b).)
32
The trial court found both requirements were met in this
case, stating that “the plaintiffs have proven by clear and
convincing evidence per Civil Code Section 3294[, subdivision] (b)
that the corporate defendant by and through its various
employees, agents, and/or management, including Russo, Casar,
and Yang, terminating the decedent’s employment in direct
violation of public policy and that the defendant acted with
malice, oppression, and/or fraud. [¶] Said actions were done by
managing agents, and I find that Russo and Casar were
managing agents, officers, and/or directors of the corporate
defendant, which clearly Yang is. Alternatively, I find that the
corporate defendant has ratified and/or otherwise adopted these
improper actions.”
“The standard of proof known as clear and convincing
evidence demands a degree of certainty greater than that
involved with the preponderance standard, but less than what is
required by the standard of proof beyond a reasonable doubt.
This intermediate standard ‘requires a finding of high
probability.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
998.)
“In general, when presented with a challenge to the
sufficiency of the evidence associated with a finding
requiring clear and convincing evidence, the court must
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by
this standard of proof.” (Conservatorship of O.B., supra,
9 Cal.5th at p. 1005.) “[A]n appellate court reviewing such a
finding is to view the record in the light most favorable to the
judgment below; it must indulge reasonable inferences that the
33
trier of fact might have drawn from the evidence; it must accept
the fact finder’s resolution of conflicting evidence; and it may not
insert its own views regarding the credibility of witnesses in
place of the assessments conveyed by the judgment.” (Id. at.
p. 1008.)
A. Intentional Malice (Subdivision (a))
Appellants do not make a new argument to support their
claim that there is insufficient evidence of malice, fraud or
oppression, but simply refer to a prior contention: “As discussed
in Section I.B.5, supra, the record lacks substantial evidence to
support a determination of clear and convincing evidence as to
the issues of malice or oppression.”
Our analysis and rejection of that argument is found in our
discussion of the reprehensibility of appellants’ conduct. There
we reviewed the evidence de novo, although such a review
requires deference to the court’s factual findings. Appellants do
not explain how or why we would reach a different result if we
reviewed the record to determine if it “contains substantial
evidence from which a reasonable trier of fact could have made
the finding of high probability demanded by this standard of
proof.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)
We are not required to make or develop arguments for
appellants, or to speculate about which issues they intended to
raise. (United Grand, supra, 36 Cal.App.5th at p. 153.) Simply
citing general authorities on the standard of proof and appellate
review is not sufficient. “[A]n appellant is required to not only
cite to valid legal authority, but also explain how it applies in his
case.” (Hodjat, supra, 211 Cal.App.4th at p. 10.)
34
B. Officers, Directors, Managing Agents and Ratification
(Subdivision b))
As to Civil Code section 3294, subdivision (b), appellants
contend Russo and Casar were not managing agents of CWG and
Casar and Yang did not authorize or ratify Lopez’s wrongful
termination. They contend, in effect, that Russo acted alone.
Yang was indisputably an officer of CWG, and there is
evidence his permission was required and given for Lopez’s
termination. The trial court found Yang either acted with malice
in terminating Lopez or ratified Russo’s wrongful termination of
her. Further, Yang was in a position to offer testimony as to
whether Russo’s and Casar’s authority over decision-making
impacted CWG policy and made them managing agents of CWG.
(See Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 372–
373.) As we have discussed, appellants have elected not to
include a complete transcript of Yang’s testimony from the
liability phase when these topics were covered. We again
construe the absence of this transcript against appellants, and
presume it contains the necessary evidence to support the trial
court’s findings.
35
DISPOSITION
The judgment, including the punitive damages award, is
affirmed. Costs are awarded to respondents.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.
36