Kim v. Konad USA Distribution, Inc.
172 Cal. Rptr. 3d 686
Cal. Ct. App.2014Background
- Esther Kim worked as an account manager for Konad USA from 2006–2010 and testified to repeated sexual harassment and unwanted touching by CEO/shareholder Dong Whang.
- Kim stopped working in November 2010, alleged constructive discharge and that Whang told her to "take her last paycheck and go," and later filed suit asserting FEHA claims (quid pro quo harassment, hostile work environment, retaliation) and a common-law wrongful termination-in-violation-of-public-policy claim.
- At bench trial defendants did not move to dismiss on FEHA exhaustion or employer-size grounds before verdict; the court found Kim credible and awarded $60,000 (net $52,500 after cross-complaint recovery).
- At trial Kim admitted she had not produced an administrative complaint, but her counsel later introduced a DFEH right-to-sue letter (exhibit 19); after judgment Kim produced DFEH verified complaints and right-to-sue letters obtained via public records request.
- Defendants moved post-judgment to vacate as void, arguing lack of subject-matter jurisdiction because Kim failed to exhaust administrative remedies and Konad had fewer than five employees; the trial court denied the motion and the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEHA exhaustion is a jurisdictional defect that can be raised after trial | Kim had exhausted DFEH remedies (verified complaints and right-to-sue letters); exhibit 19 showed at least some exhaustion | Failure to timely prove exhaustion at trial deprived court of subject-matter jurisdiction and judgment is void | Court: Exhaustion is a procedural/jurisdictional prerequisite but not fundamental subject-matter jurisdiction for forfeiture purposes; defendants forfeited timely challenge and evidence showed exhaustion — judgment affirmed |
| Whether plaintiff needed to introduce the DFEH complaints into trial record to establish jurisdiction | Kim later produced verified DFEH complaints/right-to-sue letters; court could consider posttrial records to resolve the issue | Records not admitted at trial and thus cannot cure an asserted jurisdictional defect on appeal | Court: Trial evidence (exhibit 19) plus verified complaints submitted posttrial established exhaustion; reliance on those records is permissible here and supports affirmance |
| Whether Konad’s employee-count (five-or-more) was lacking so wrongful termination claim fails | Kim’s wrongful termination claim based on sexual harassment and California constitutional policy; FEHA harassment provision applies to employers of any size for sex-based harassment | Konad had fewer than five employees, so FEHA-based public policy cannot support common-law wrongful termination | Court: Sexual-harassment policy under FEHA applies to all employers (Gov. Code §12940(j)(4)(A)), and the California Constitution independently supports the tort; claim may proceed regardless of five-employee threshold |
| Whether Whang is individually liable for wrongful termination in violation of public policy | Kim treated Whang as a responsible actor; court found both defendants liable on all causes | An individual who is not the employer cannot be liable for the wrongful termination tort (only the employer can) | Court: Miklosy precludes individual liability unless the individual is the employer; appellate brief failed to show prejudice from any possible error, and judgment affirmed on record-based grounds |
Key Cases Cited
- Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607 (discusses DFEH role and right-to-sue process)
- Romano v. Rockwell Internat., 14 Cal. 4th 479 (exhaustion and right-to-sue letter prerequisites)
- Johnson v. City of Loma Linda, 24 Cal. 4th 61 (describes exhaustion as a jurisdictional prerequisite)
- Keiffer v. Bechtel Corp., 65 Cal. App. 4th 893 (defense waived if not timely asserted; exhaustion not absolute subject-matter jurisdiction)
- Mokler v. County of Orange, 157 Cal. App. 4th 121 (administrative-exhaustion waiver and procedural treatment)
- Wills v. Superior Court, 195 Cal. App. 4th 143 (exhaustion requirement before filing FEHA suit)
- Grant v. CompUSA, Inc., 109 Cal. App. 4th 637 (plaintiff may reopen case after nonsuit to prove right-to-sue letter)
- Rojo v. Kliger, 52 Cal. 3d 65 (constitutional public policy supports wrongful termination tort for sex discrimination/harassment)
- Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876 (individuals generally not liable for wrongful termination tort absent employer status)