Estate of McMahon CA1/1
A170449
| Cal. Ct. App. | Nov 14, 2025|
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Estate of DAVID J. McMAHON,
Deceased.__________________________
VICTORIA BOYKO,
Plaintiff and Appellant, A170449
v.
(San Francisco City & County
KIM SCHWARCZ, as Personal
Super. Ct. No. CGC-18-569795)
Representative, etc.,
Objector and Respondent.
In this action for unpaid wages, Victoria Boyko appeals from an
adverse judgment following a jury trial. She raises numerous claims of error,
most supported by four juror declarations obtained after trial. Specifically,
she argues substantial evidence supported her claimed damages and thus the
jury’s failure to award her any damages must be reversed, the trial court
abused its discretion in denying her motion for new trial on the ground of
juror misconduct, and the trial court invaded the province of the jury by
making a credibility finding against her when denying her claim for
restitution under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et
seq. (UCL)). We affirm.
1
BACKGROUND
David McMahon was an attorney who specialized in performing legal
audits—that is, he reviewed attorneys’ fees for insurance companies and
other individuals and entities to make sure they were reasonable and
necessary, and the client was not overpaying. He also testified as an expert
witness as to the reasonableness of fees. To perform this work, McMahon
was required to generate detailed audits of the billing records at issue.
In January 2016, McMahon left his partnership with a law firm and
went into business for himself, focusing on his legal audit work. He enlisted
the services of Boyko, his former legal assistant, Bogdan Viner, Boyko’s life
partner who had a background in IT, and Esfir Viner, Bogdan’s sister who
had a background in accounting.1 After working together successfully for
slightly over a year, McMahon’s relationships with the three soured, and they
ceased working for him.
In September 2018, Boyko filed a complaint against McMahon,
alleging, as is relevant here, causes of action for unpaid wages (Lab. Code,
§ 204), waiting time penalties (id., § 203), unfair business practices under the
UCL, and quantum meruit. In addition, Boyko alleged an implied-in-fact
contract with McMahon pursuant to which she could be fired only for cause
and would receive wages in the amount billed to clients for her legal auditing
services for 10 years, at which point, she would take over the legal auditing
business, with McMahon only doing marketing for the company. She also
sought attorney fees (Lab. Code, § 218.5) and interest (id., § 218.6). Bogdan
and Esfir filed similar complaints in April 2019 and November 2018,
respectively.
1 We will refer to the Viner siblings by their first names to avoid
confusion.
2
In 2020, McMahon unexpectedly passed away. The probate court
appointed Kim Schwarcz, a professional fiduciary, as personal representative
of the estate. Thereafter, Schwarcz was substituted into all three cases as
the defendant. The three matters were ultimately consolidated for trial.2
Summary of Trial and Related Proceedings
Jury trial took place over the course of seven days in July 2023. The
evidence adduced included the following:
Testimony of Victoria Boyko
Boyko was born in Ukraine and, while a child, emigrated to San
Francisco with her family. She graduated from college with a degree in
finance and subsequently worked various office jobs, including as a finance
manager and an accounting manager.
She met McMahon in 2013, when he offered her a job as an assistant at
the law firm where he was a partner. Boyko was eventually hired as an
independent contractor to help McMahon with his legal audits. Thereafter,
the law firm merged with another firm. Boyko continued to work for
McMahon. Among other tasks, she created marketing brochures at
McMahon’s request which introduced McMahon and Boyko as the firm’s
audit team.
During this timeframe, McMahon also recruited Bogdan, Boyko’s long-
term partner, to assist with his legal audit work.
Throughout 2015, McMahon spoke with Boyko about wanting to start
his own company so he would have more control over his legal auditing
business and less overhead. According to Boyko, McMahon wanted to create
2 On our own motion we take judicial notice of the appellate record in
each of the other two cases tried with Boyko’s case—No. A170193 (Esfir) and
No. A170254 (Bogdan). (Evid. Code, §§ 452, subds. (c) & (d), 459, subd. (a).)
3
two entities—a law firm for his litigation work and a company for his legal
audit work. As to the legal audit business, “he was looking for a partner to do
the audits with and to support him in his audits.” According to Boyko, the
idea was that she and McMahon would be 50/50 partners in the audit
business (which was approximately 90 percent of McMahon’s total work). As
to the general litigation legal work (i.e., the remaining 10 percent of
McMahon’s work), Boyko would act as office manager, and when she assisted
him as a paralegal, she would be paid by the hour. McMahon spoke of
retiring in 10 years, at which time she would take over the audit business,
with McMahon continuing to do marketing for the company. While McMahon
filed papers with the Secretary of State and opened a bank account for the
audit business (Fulcrum Litigation Management), he never prepared a
written partnership agreement or fully utilized Fulcrum.
Around Christmastime, McMahon treated Boyko, Bogdan, and Esfir to
a celebratory dinner at which McMahon stated he was ready to open a new
company, with Bogdan doing IT and Esfir doing bookkeeping and accounting.
Early on, they had a meeting where McMahon explained they would
not be paid immediately because clients often took 90 days or even more to
pay for services. McMahon told Esfir she would be paid at market rate for
her accounting services. An e-mail from McMahon was admitted into
evidence confirming that Bogdan’s rate of pay for IT services was $140 per
hour. A document was admitted into evidence showing McMahon’s billing
rate of $450 per hour. No similar evidence was presented as to Bogdan’s,
Esfir’s, or Boyko’s rate of pay per hour for legal auditing services.
Boyko would sit in on meetings with audit clients and would be
introduced to them either as McMahon Law’s audit director or partner.
Boyko did not know at the time that she could not be a partner in a law firm
4
because she was not a lawyer. With respect to the audit work, all her
discussions with McMahon were partnership based, and the work was
supposed to be conducted by a different entity than his litigation work.
The audits could be very complex. Boyko recalled one involving 25
million dollars of legal fees over the course of 10 years which included 18
different law firms, as well as related vendors and expenses.
After McMahon was hired to conduct an audit, Bogdan would take the
digital files and “data map[]” them so that they could be merged into
McMahon’s proprietary audit software, which could read them and create
reports. While this was being done, Boyko and McMahon went through a
paper version of the files and assigned every entry on every invoice a specific
code by hand. Boyko would then, under McMahon’s supervision, enter the
codes for each item into the audit software.
Although Boyko was hired to supervise staff and be McMahon’s point
person, she could not make a move without McMahon’s instructions or
authority. She never went to the bank without McMahon’s authorization,
and he usually accompanied her. McMahon would review all invoices before
Boyko was allowed to authorize Esfir to pay them. She had to get permission
from McMahon to contact clients.
The group used several offices. One was in the home shared by Boyko,
Bogdan, their children, and Esfir, where McMahon had his own space and
computer. Another was in the basement of a house McMahon owned in Mill
Valley which was otherwise rented to tenants. A third was located in the
home where McMahon lived with his wife. The fourth was a traditional office
space with a conference room McMahon rented in San Francisco.
5
Boyko worked approximately 60 to 70 hours in a typical week and
would work evenings and weekends as needed. She kept timesheets
reflecting the billable hours she worked on audit cases.
Boyko was paid infrequently because McMahon would only pay her
after a client paid. Even then, he only paid Boyko for a portion of her work.
Boyko prepared a printout of all wages McMahon paid her, which was
admitted into evidence. From April to July 2016, she received payments
totaling approximately $200,000. She received payments in the same range
in 2017. However, according to Boyko, the approximately $140,000 she was
paid in February 2017 was due to the fact she had asked McMahon in
January to start paying her what she was already owed and to prepare the
partnership documents. McMahon said he would get back to her with respect
to the partnership documents. But after that, her assignments and
communications between the two started to decline.
After she received the February payment, McMahon asked to meet
about the partnership. At a meeting on February 15, the two discussed the
goals of the audit business and their positive working relationship.
McMahon apologized for his previous actions and stated he wanted to
continue the business. They made plans to meet two days later at the San
Francisco office to go over an expert report that was being prepared for a
client. McMahon said he would bring a written partnership agreement at
that time.
On the morning of the scheduled meeting, McMahon called Boyko,
crying and asking her not to leave him. At the time, she took this to mean
that he did not want her to leave the business, as he had recently told her his
wife had left him. When Boyko got to the meeting, however, McMahon
proposed they not only work together but “be together” romantically. Boyko
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was shocked. She told him he needed to get himself together and that was
not what their relationship was about. Then she left.
Boyko worked on her own on a client audit through February but then
did no more work for McMahon.
Boyko created records of the time she worked in December 2016,
January 2017, and February 2017. Her time was billed out to clients at $250
an hour, which was sometimes discounted to $210 if the client was given a
discount. McMahon told her that her client billing rate would also be her pay
rate.
According to Boyko, she was owed $140,000. Although she believed she
was entitled to share in the profits of the company, she did not think she
could ask McMahon for a 50/50 share because there was no written
partnership agreement.
The following month, in March, McMahon texted Boyko, apologizing
and saying he hoped they could be friends and get back to their business
relationship. Although she did not see him in person, she heard from him by
text throughout the month, and by e-mail even after that.
Boyko did not have a clear understanding of when her employment
ended, but hypothesized it was in September. She was on vacation from
March through May. By May, she had heard McMahon was refusing to pay
people, but she continued to receive e-mails from him about twice a month on
work matters. She still had access to McMahon Law e-mail and documents.
Testimony of Bogdan Viner
Bogdan was born in Latvia and came to the United States when he was
16, where he received an associate’s degree in computer science. He met
McMahon through Boyko, and the two subsequently became friends. At some
7
point, McMahon told him he was looking for help on some projects, with the
idea of eventually starting his own company.
Bogdan then did some legal auditing work for McMahon, before
McMahon left his law firm to go out on his own. Bogdan did the work at his
home or at the firm’s offices in the evenings. He was paid for this work
through A2Z, an LLC Bogdan created two years before meeting McMahon.
Bogdan intended to use the entity for real estate sales but never did.
McMahon and Bogdan used A2Z so McMahon could present Bogdan “as his
legal auditor who, as a company, would do legal audits on his behalf.”
McMahon prepared an invoice from A2Z for this initial project in the
amount of $81,750, which was admitted into evidence and reflected both
Bogdan’s hours and the hours of others. McMahon also prepared a second
invoice for this project, but Bogdan could not remember the amount of that
invoice. The understanding between the two men was, when the client paid,
they would split the payment 30 percent to Bogdan and 70 percent to
McMahon. A check for $123,100 payable to A2Z was admitted into evidence
representing the total the client paid for the project. A cashier’s check for
$102,026.80 from A2Z to McMahon was entered into evidence, and Bogdan
testified it represented McMahon’s 70 percent share.
After they concluded this trial project to see if they worked well
together, McMahon decided to go out on his own. They had a celebratory
dinner at the end of 2015 at which McMahon, Boyko, Bogdan, and Esfir were
present. At the dinner, McMahon indicated he wanted Bogdan to be his IT
specialist and continue to do legal audits. Boyko was to be his partner in
Fulcrum Litigation Management. Esfir was asked to do accounting and
possibly some legal auditing, but she could only work part time because she
already had a full-time job.
8
McMahon told Bogdan he would be paid 100 percent of whatever
negotiated hourly rate was charged for his time on a legal audit project.
Their agreement was not in writing, but Bogdan did receive an e-mail from
McMahon stating he would be paid $140 per hour for his IT work. There was
also nothing in writing for the first audit representing an agreement as to
Bogdan’s hourly rate of pay. Every legal audit was customized, and
McMahon would sit next to Bogdan, training and supervising him in using
the methodology McMahon had created for each specific audit. Bogdan did
the work at his home office for subsequent projects and continued to be paid
through A2Z. Bogdan kept his time in six-minute increments on his
computer, printing it off monthly to give it to McMahon. McMahon would
prepare invoices for clients after gathering everyone’s timesheets. He would
make calculations and then give them to Esfir to add to the invoice. A2Z was
paid $263,749.74 by McMahon Law in 2016.
Bogdan worked on a legal audit in November and December 2016 for
which he was never paid. Bogdan was also not paid for a legal audit he
worked on from November 2016 through January 2017. McMahon had
agreed to pay him $175 per hour for both projects.
Bogdan’s home computer where he kept his timesheets was
subsequently destroyed by a power surge.
Testimony of Esfir Viner
Esfir came to the United States from Latvia at a young age. She
eventually earned a college degree in accounting and worked as a full-time
accountant.
Esfir confirmed that an electrical surge had impacted their home
computer and many different electrical appliances in the house in May 2018.
9
She made a claim to PG&E for the damage. All her individual timesheets
stored on the home computer were lost.
Esfir first helped McMahon on a legal audit when he was with his prior
firm in October 2015. That same month, he told Esfir he would like her to do
accounting and bookkeeping work for him if he opened his own firm. At the
time, she already had a full-time accounting job, so she told him she would
have to be part time. He told her he would research the market rate for her
position, so he could pay her that.
At a celebratory dinner in December 2015, McMahon told Esfir she was
qualified to work on legal audits, and he wanted her as part of his team. He
explained to the group that he thought they worked well together, and he was
going to open his own firm. McMahon reiterated to Esfir that he wanted her
to do part-time bookkeeping for him and that he was going to research what a
reasonable part-time rate would be. He additionally told her she might also
work on legal audits, and the amount she would be paid for that would be the
amount he billed to his clients for her work.
Esfir started doing bookkeeping and accounting work for McMahon in
January 2016. She followed McMahon’s instructions when completing all her
accounting work. She never wrote a check or did a distribution without
McMahon’s express authorization.
Esfir kept track of the approximate number of hours she worked during
the first three months of 2016, which were about 35 hours per month. She
told McMahon this number so he could investigate comparable pay rates.
Esfir did not otherwise keep track of her monthly accounting hours, but they
remained the same. In May 2016, McMahon agreed to pay her $3,000 per
month for her accounting work. She was paid for the months of June 2016
through January 2017.
10
At McMahon’s request, Esfir prepared an invoice for what she was
owed for accounting for January through May 2016. The invoice, which was
entered into evidence, reflected she was owed $15,000. McMahon told Esfir
payment of the invoice would be deferred until the end of the year for cash
flow purposes. She was never paid. Esfir received an e-mail in January 2017
from McMahon stating he was going to transition her away from the
accounting work in favor of his tax accountants.
McMahon used a cash-based accounting software for the business.
Esfir never entered data into the accounting software unless she was
instructed to do so by McMahon. The software did not include what was
owed or paid to employees, independent contractors, or vendors.
Esfir was involved in the creation of client invoices for McMahon from
January 2016 through January 2017. She, Bogdan, and Boyko would provide
their timesheets to McMahon. He would approve them and then use them,
along with his e-mails and phone calls, to create his own time records.
McMahon would then provide the data to Esfir, and she would input the date,
description, and hours into an invoice template. Esfir would then print out a
draft, which McMahon would revise. Once McMahon approved a final
version, Boyko would convert it to a pdf and send it to the client. After an
invoice was sent to the client, Esfir would input all the data into the
accounting software. She also checked that the hours on the invoice for
everyone matched the timesheets she had received. It typically took
approximately 90 days for clients to pay their invoices. An income statement
for McMahon Law for 2016 was admitted and showed net income of
approximately $1,500,000 for the firm.
Esfir began working on legal audits for McMahon in November 2016.
She calculated what she was owed for these services (as opposed to
11
bookkeeping) to two clients by adding up all her hours listed on relevant
McMahon client invoices. The invoice for January 2017 (prepared in
February 2017) was a draft because she never received the final. Whenever
she inputted the data from the final invoice sent to a client, she also
compared the hours listed for everyone on their approved timesheets, and
there was never any deviation. The invoices reflected her pay rate of $175
and the total number of hours she worked. She could not say how many
hours she worked on any particular day because McMahon would reallocate
hours. She was never paid for this legal auditing work.
Verdicts
As to Boyko, the jury found no partnership had been formed with
McMahon. It also found facts establishing that Boyko was an employee of
McMahon Law, rather than an independent contractor; that she performed
work for McMahon; and that McMahon owed her wages. However, the jury
also found Boyko failed to prove the amount of wages she was owed and also
failed to prove the value of the services she provided for purposes of quantum
meruit. It specifically found Boyko failed to prove an implied-in-fact contract
to pay her wages in the amount billed to clients. The jury therefore awarded
her no damages.
In contrast, the jury awarded Esfir $95,515 in unpaid wages for
auditing work and determined her daily rate of pay at the end of her
employment was $634.51. It also awarded Esfir $15,000 in unpaid wages for
her accounting work. The jury similarly awarded Bogdan $94,832.50 in
unpaid wages and determined his daily rate of pay at the end of his
employment was $637.90.
12
UCL Claims
After the jury returned its verdicts, the trial court considered the
parties’ briefing and arguments on their UCL claims. The court pronounced
its decision on the record in mid-November, and subsequently filed a
statement of decision, wherein it noted a judge cannot ordinarily “ ‘ignore the
jury’s verdict and grant equitable relief inconsistent with the jury’s findings’ ”
and that a UCL claimant may only obtain injunctive relief or restitution. It
additionally observed a court has wide discretion whether to grant relief even
when an unfair business practice has been shown.
As to Boyko, the court found McMahon had engaged in an unfair
business practice by mischaracterizing her as an independent contractor.
But it also found “Boyko was not a credible witness as to her claim of
partnership with McMahon and as to her rate of pay. The court is not
persuaded by Boyko’s testimony that McMahon agreed to pay her 100% of the
rate McMahon billed his clients for her work (i.e., a 100% ‘pass-through’
rate). The court finds Boyko’s testimony in this regard to be in conflict with
her other testimony where she claimed to be a 50/50 general partner which
would have imposed upon her half of the overhead and other liabilities of the
business. The court also finds Boyko’s testimony of a pass-through rate
inconsistent with other testimony and evidence about the methods used by
McMahon to run his business.” Thus, with respect to restitution under the
UCL, the court found Boyko failed to prove she was harmed, the amount of
any harm, or that McMahon was unjustly enriched, and that the amount
already paid by McMahon to Boyko (over $400,000) was more than equitable.
In contrast, the court found Esfir and Bogdan were entitled to
restitution but wholly offset the amounts “ ‘dollar for dollar’ ” by the amounts
awarded by the jury as owed wages.
13
Post-Trial Motions and Judgment
The court entered judgment against Boyko on December 28, 2023.
The following month, in January 2024, she moved for a new trial on
damages and restitution. Relying on declarations obtained from four of the
jurors, she argued she was entitled to a new trial because the jurors felt time
pressure in rendering their verdicts, found the special verdict form confusing,
and were confused by the instructions and verdict form with respect to
quantum meruit. She also claimed the jury improperly compared the
evidence among the three separate cases and incorrectly assumed the judge
would award damages if they did not. After briefing and argument, the court
denied her motion.
DISCUSSION
Admissibility of Juror Declarations
As she did in the trial court, Boyko relies on the four juror declarations
she solicited after the verdicts to support her arguments on appeal.
Schwarcz’s lead argument in response is that the declarations are
inadmissible under Evidence Code section 1150. Boyko claims Schwarcz
forfeited this argument by failing to object to the declarations in the trial
court. As we shall explain, given the state of the record, we decline to find
forfeiture.
Pursuant to Evidence Code section 1150, subdivision (a): “Upon an
inquiry as to the validity of a verdict, any otherwise admissible evidence may
be received as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a character as is
likely to have influenced the verdict improperly. No evidence is admissible to
show the effect of such statement, conduct, condition, or event upon a juror
14
either in influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was determined.”
As our high court has explained, “ ‘[t]his statute distinguishes “between
proof of overt acts, objectively ascertainable, and proof of the subjective
reasoning processes of the individual juror, which can be neither
corroborated nor disproved. . . .” [Citation.] “This limitation prevents one
juror from upsetting a verdict of the whole jury by impugning his own or his
fellow jurors’ mental processes or reasons for assent or dissent. The only
improper influences that may be proved under [Evidence Code] section 1150
to impeach a verdict, therefore, are those open to sight, hearing, and the
other senses and thus subject to corroboration.” ’ ” (People v. Gonzales (2012)
54 Cal.4th 1234, 1281.)
Juror statements “ ‘must be admitted with caution,’ because
‘[s]tatements have a greater tendency than nonverbal acts to implicate the
reasoning processes of jurors.’ ” (People v. Cleveland (2001) 25 Cal.4th 466,
484(Cleveland).) “[S]tatements made by jurors during deliberations are admissible under Evidence Code section 1150 when ‘the very making of the statement sought to be admitted would itself constitute misconduct.’ ” (Ibid.) In contrast, “when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.” (People v. Hedgecock (1990)51 Cal.3d 395, 419
(Hedgecock).) Indeed, “ ‘[e]vidence that violates Evidence Code section 1150 is not merely inadmissible; it is irrelevant—“of no jural consequence.” ’ ” (In re Hansen (2014)227 Cal.App.4th 906
, 928–929.)
The juror declarations at issue here were first presented to the trial
court in conjunction with Boyko’s postverdict briefing on her UCL claim. In
15
her written opposition, Schwarcz characterized Boyko’s UCL claim as one
“purportedly supported by juror declarations,” but she did not specifically
object to the declarations.
A subsequent minute order of a hearing on October 19 indicated
Boyko’s (and Esfir’s and Bogdan’s) UCL claims were ready for resolution,
gave a tentative ruling, and set a briefing schedule for additional briefing on
those motions.
In her supplemental briefing, Schwarcz did not mention the juror
declarations. But she did note that, at the hearing, the trial court had
indicated Boyko’s argument for a new trial was not “procedurally proper” at
that point.
The minute order for the continued hearing on November 15, states the
parties argued the UCL issues and as to Boyko, the court ruled she was not
entitled to restitution.
Thereafter, Boyko resubmitted the juror declarations in support of her
new trial motion. In her written opposition, Schwarcz argued the motion
should be denied on multiple grounds, including that the juror declarations
were “insufficient to form the basis of a new trial motion for any reason.”
She went on to argue why the statements in the declarations failed to
support the grant of a new trial.
It is not clear from the minute order for the new trial hearing on March
1, 2024, whether there was argument on Boyko’s new trial motion, or
whether the motion was simply submitted. It is clear, however, there was
argument with respect to Schwarcz’s new trial and JNOV motions. The
court then denied all three motions, stating: “A proper showing has not been
made that the Court should disrupt the verdict.”
16
While it may be that Schwarcz failed to voice any objection to the juror
declarations on the basis of Evidence Code section 1150, the record does not
definitively demonstrate that is the case. The record on appeal contains no
reporter’s transcript of the hearings on either the UCL claims or new trial
motions. Nor have the parties provided settled statements. (See Cal. Rules
of Court, rule 8.137.) Moreover, as we have recited, Schwarcz argued in her
written opposition that Boyko’s new trial motion should be denied because
the juror declarations were “insufficient to form the basis of a new trial
motion for any reason.” And, in denying Boyko’s new trial motion, the court
ruled no “proper showing” had been made to “disrupt the verdict.” In short,
the state of the record as to the evidentiary propriety of the juror
declarations is at least arguably ambiguous—and, thus, not one on which we
are prepared to find forfeiture of what is essentially a legal issue on the
application of Evidence Code section 1150, which the parties have fully
briefed on appeal.
Substantial Evidence of Rate of Pay
Boyko maintains the jury erred in failing to award her damages
because it assertedly made findings entitling her to a damages award and she
presented substantial evidence supporting the amount of damages she
claimed.
“ ‘We generally apply the familiar substantial evidence test when the
sufficiency of the evidence is at issue on appeal.’ ” (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)
However, where, as here, the issue involves a failure of proof, the reviewing
court must consider “ ‘whether the evidence compels a finding in favor of the
appellant as a matter of law.’ ” (Id. at p. 466.) In such case, the court should
ask “ ‘whether the appellant’s evidence was (1) “uncontradicted and
17
unimpeached” and (2) “of such character and weight as to leave no room for a
judicial determination that it was insufficient to support a finding.” ’ ” (Ibid.)
Boyko first relies on the well-established principle that “unless the
testimony is physically impossible or inherently improbable, [the] testimony
of a single witness is sufficient to support a conviction.” (People v. Young
(2005) 34 Cal.4th 1149, 1181.) In this regard, she points to her own
testimony regarding the extent of, and payment arrangements for, her work
and that she was owed over $567,000 for it. Her testimony, she asserts, was
not “physically impossible or inherently improbable.” And in support of this
assertion she relies on three of the four juror declarations stating jurors
found her credible and thought she was entitled to damages.
Boyko admits, however, as she must, that “[a] trier of fact is free to
disbelieve a witness, even one uncontradicted, if there is any rational ground
for doing so. (See Blank v. Coffin (1942) 20 Cal.2d 457, 461 . . . ; see also Guerra v. Balestrieri (1954)127 Cal.App.2d 511
, 515 . . . [‘the trier of the facts is not required to believe everything that a witness says even if uncontradicted’].)” (In re Jessica C. (2001)93 Cal.App.4th 1027, 1043
.)
As for her reliance on the three juror declarations stating the jurors
found her credible and thought she was entitled to damages, these are
precisely the kind of postverdict juror statements inadmissible under
Evidence Code section 1150—they are verbal reflections of the jurors’ mental
processes and, as such, cannot be used to impeach the jury’s verdict after-
the-fact. (See Hedgecock, supra, 51 Cal.3d at p. 419.)
In any case, the declarations do not foreclose the possibility that, even
if jurors found Boyko generally credible and concluded she had not been paid
for all of her work, it found her evidence as to the amount of her claimed
damages so contradictory and confusing it was unable to determine, with any
18
degree of confidence, the amount of such damages. Boyko testified she was
entitled to a 50/50 share of the profits with respect to McMahon’s legal audit
business and she should be paid based on the number of hours she billed to
the audit clients. She also claimed McMahon told her he would pay her a
100 percent pass-through rate for all the hours she billed clients. She
admittedly did not record her hours for the time she spent managing the
business for McMahon. And although she had been paid over $400,000 for
her work, she presented no evidence as to how these lump sum payments
were calculated or the type of work they were for. We certainly cannot say
on this record that, as a matter of law, the evidence compelled a finding in
favor of Boyko with respect to the amount she was assertedly owed.
Indeed, even taking into account the declarations, they support, rather
than undermine, this conclusion. The declarations all reflect statements that
jurors were uncomfortable relying on Boyko’s testimony, alone, regarding the
amount of her damages, even though the testimony was not challenged.
They wanted to see hard evidence. Jurors also indicated they did not
understand the amount of damages Boyko was requesting, as she had both
billable audit work and unpaid time managing the law firm. Jurors “agreed
[they] could not award damages for unpaid wages without understanding
what the amount was tied to.” The jury foreman declared: “All of the jurors
voiced their agreement that the dollar amount requested by Ms. Boyko’s
lawyers seemed speculative because there was no delineation of which of her
duties the dollar amount applied.”3
3 Indeed, as Boyko, herself, states in her briefing, she “performed a
tripartite quantity of services—1) office manager; 2) legal audit work under
the auspices of the never-formed partnership; and 3) work on client billed
matters for non-audit clients. On top of all that, [she] made herself available
19
In sum, the jurors’ failure to find any amount of damages was not juror
error; it was a failure of proof. By positing an array of theories of recovery,
without ever describing the exact damages she was seeking, Boyko failed to
marshal sufficient evidence to support any non-speculative award.
Boyko next relies on the proposition that damage estimates are
permissible in a case such as this one where records were unavailable, and
the jury was instructed on this point. (See Mardirossian & Associates, Inc. v.
Ersoff (2007) 153 Cal.App.4th 257, 269 [“ ‘Where the fact of damages is
certain, the amount of damages need not be calculated with absolute
certainty. [Citations.] The law requires only that some reasonable basis of
computation of damages be used, and the damages may be computed even if
the result reached is an approximation.’ ”].) In support, she again points to
the juror declarations, specifically to statements that the jury did not
estimate damages because it was not given a choice to do so under the special
verdict form or instructions pertinent thereto.
Boyko did not, however, object to the special verdict form before the
jury was discharged and therefore forfeited any challenge to it. In fact, the
special verdict form appears to have been crafted collaboratively by the
parties and the court. It is well established that “ ‘[f]ailure 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.’ ” (Keener v. Jeld-Wen, Inc. (2009)
46 Cal.4th 247, 263–264 (Keener), italics omitted.) For example, in Taylor v. Nabors Drilling USA, LP (2014)222 Cal.App.4th 1228
, the instructions on
at all hours of the day and provided office space to McMahon at her home
without charging rent.”
20
the special verdict form incorrectly told the jury to skip two questions about a
hostile work environment sexual harassment cause of action. (Id. at
pp. 1240–1241.) The defendant had not detected the error when it approved
the verdict form. (Id. at pp. 1241–1242.) The appellate court affirmed the
trial court’s ruling that the defendant forfeited any claim that the special
verdict was fatally defective because it failed to object before the jury was
discharged. (Id. at p. 1242.)
So too, here. The jury delivered a complete verdict, consistent with the
instructions given. Thus, Boyko’s objection is to the form of the verdict and
the issues determined by the verdict. Since she failed to object in a timely
manner, she has forfeited her claim. (See Wentworth v. Regents of University
of California (2024) 105 Cal.App.5th 580, 616–617.)
Moreover, her argument is based squarely on inadmissible juror
declaration statements. These statements include that “[e]stimating Ms.
Boyko’s unpaid wages was mentioned, but we agreed that we could not make
an estimate because the verdict form did not give us the option to do so. Once
we voted ‘No’ to Question 12, which asked whether she proved the amount of
wages owed at an agreed rate of pay for work performed, the form instructed
us to skip Question 13 asking about the amount, and other questions, until
we got to Question 26.” Again, these statements are consummate examples
of verbal reflections of the jurors’ mental processes inadmissible under
Evidence Code section 1150. (See Hedgecock, supra, 51 Cal.3d at p. 419.)
Boyko also argues the jury did not understand her quantum meruit
damages claim. This argument suffers from the same deficiencies as her
second. To the extent she is asserting there was a flaw in the special verdict
form and pertinent instructions, Boyko forfeited the argument by failing to
object to the verdict in a timely manner. (See Keener, supra, 46 Cal.4th at
21pp. 263–264.) She is also basing her claim on the following statements in the juror declarations: “The jurors talked about the meaning of ‘quantum meruit,’ and most, if not all of us said we did not understand what the term meant. The definition of this term was not provided during the verbally stated jury instructions. When the court did not answer our question about its meaning and referred us back to the written jury instructions, we reread the instructions, but we continued to agree that the meaning of quantum meruit was not clear. Because of that we agreed that we did not know how to answer the question whether Ms. Boyko had proven the value of her services to David McMahon, and we voted to say ‘No’ to the question on her verdict form.” These statements are, like the others on which she has relied, verbal reflections of the juror’s mental processes and inadmissible under Evidence Code section 1150. (See Hedgecock, supra,51 Cal.3d at p. 419
.)
Finally, Boyko relies on the principle that a “ ‘plaintiff is entitled to
recover nominal damages for the breach of a contract, despite inability to
show that actual damage was inflicted upon [him or her]’ ” because “ ‘failure
to perform a contractual duty is, in itself, a legal wrong that is fully distinct
from the actual damages.’ ” (Elation Systems, Inc. v. Fenn Bridge LLC (2021)
71 Cal.App.5th 958, 965–966; see Civ. Code, § 3360 [“When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.”]; Elations Systems, Inc., at pp. 965–966 [where the jury found the defendant breached a nondisclosure agreement but the plaintiff did not suffer damage, the plaintiff could still recover nominal damages]; Sweet v. Johnson (1959)169 Cal.App.2d 630
, 632–633 [where the defendant breached
22
a contract to develop real property but the plaintiff's damages were
speculative, the trial court should have awarded nominal damages].)
However, this is another argument Boyko is making for the first time
on appeal and thus far too late in the day. “ ‘In a civil case, each of the
parties must propose complete and comprehensive instructions in accordance
with [their] theory of the litigation; if the parties do not do so, the court has
no duty to instruct on its own motion.’ ” (Agarwal v. Johnson (1979)
25 Cal.3d 932, 950–951, disapproved on another ground in White v. Ultramar, Inc. (1999)21 Cal.4th 563, 574, fn. 4
.) “ ‘ “Where, as here, ‘the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he [or she] must request the additional or qualifying instruction in order to have the error reviewed.’ [Citations.]” [Citation.] [A party’s] failure to request any different instructions means [they] may not argue on appeal the trial court should have instructed differently.’ ” (Holguin v. Dish Network LLC (2014)229 Cal.App.4th 1310, 1319
, quoting Metcalf v. County of San Joaquin (2008)42 Cal.4th 1121, 1131
.) While Boyko asserted
multiple theories of recovery and secured instructions on all of them, she
never asked for instructions on nominal damages or requested them in the
special verdict form or prior to the discharge of the jury. She is not entitled
to reversal to try a new claim she could have made but never did.
Denial of New Trial on Damages
Boyko maintains she was entitled to a new trial on the ground of juror
misconduct. Specifically, she claims jurors improperly concluded
documentary proof was necessary to support her damages claim, improperly
compared the evidence presented in the three separate cases being tried
together, and incorrectly thought the judge would determine the amount of
her damages if they did not.
23
“ ‘Courts evaluate a motion for a new trial based on jury misconduct in
three steps: (1) determine what evidence is admissible; (2) if there is
admissible evidence, decide if it establishes misconduct; and (3) if there is
misconduct, determine whether it was prejudicial.’ ” (People v. Herrera
(2024) 102 Cal.App.5th 178, 195 (Herrera).)
The first step—determining whether the evidence supporting the
motion for a new trial is admissible under Evidence Code section 1150—we
review, “[l]ike any other issue of admissibility . . . for abuse of discretion.”
(People v. Flores (2021) 70 Cal.App.5th 100, 108.) “The moving party bears the burden of establishing juror misconduct.” (Donovan v. Poway Unified School Dist. (2008)167 Cal.App.4th 567, 625
.) “We will not presume greater misconduct than the evidence shows.” (In re Carpenter (1995)9 Cal.4th 634, 657
.) The second step—determining whether the admissible evidence establishes misconduct—is “ ‘a legal question we review independently.’ ” (Herrera, supra, 102 Cal.App.5th at p. 195, quoting People v. Collins (2010)49 Cal.4th 175, 242
.) But in doing so, we “ ‘ “accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” ’ ” (People v. Gamache (2010)48 Cal.4th 347, 396
.) The third step—whether prejudice arose from juror misconduct—
is a mixed question of law and fact subject to an appellate court’s
independent determination. (In re Carpenter, at pp. 658–659.)
As to the first step, the trial court denied Boyko’s new trial motion,
stating an insufficient showing had been made to disrupt the jury’s verdict.
The court made no specific ruling on the evidentiary value of the juror
affidavits. We therefore have no evidentiary ruling to review for abuse of
discretion and must assume the trial court followed the law and made no
ruling so arbitrary and capricious as to constitute an abuse of discretion.
24
(See Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455 [prejudice is not
presumed in evidentiary context; it is appellant’s burden to affirmatively
demonstrate prejudice].)
As to the second step, Boyko advances three claims of juror misconduct.
She first maintains the jury committed misconduct by “essentially creat[ing]
its own jury instruction”—i.e., that she could only prove damages with
documentary evidence. In this regard, she points to juror declarations
stating jurors were uncomfortable relying on Boyko’s testimony, alone,
regarding the amount of her damages, even though the testimony was not
challenged. They wanted to “see ‘actual evidence,’ ” and “ ‘see the math,’ ” in
support of her wage claims. But, as we have explained, these statements
relate to the jury’s deliberative process and are patently inadmissible under
Evidence Code section 1150. In any case, given the other juror statements
pertaining to juror confusion as to the bases for Boyko’s damages claim and
its seemingly speculative nature, that jurors may have wanted additional
evidence was not tantamount to a self-made “jury instruction” requiring
documentary and/or computational evidence. Rather, the jury apparently
wanted additional evidence because it was not persuaded by Boyko’s
testimony—a consummate credibility finding entrusted to the jury.
Boyko’s second claim of juror misconduct is related to her first and is
predicated on juror statements that jurors compared Boyko’s evidence on the
amount of her claimed damages with that presented by Bogdan and Esfir.
For example, one juror stated: “We discussed and compared the differences in
the evidence provided in support of the three different plaintiffs’ cases, and
we agreed that without seeing invoices or other documentation of the type
provided in support of Esfir and Bogdan Viner’s cases, we did not [feel]
comfortable providing a dollar amount for what we felt Ms. Boyko was owed.”
25
Another juror declared: “We agreed that we felt much less certain about how
to make a fair assessment of Ms. Boyko’s hours and compensation rate in the
absence of the same type of documentary evidence [such as that provided by
Bogdan and Esfir], and we therefore did not provide a dollar amount for what
we felt she was owed.” According to Boyko, this violated the instruction that
the jury should “decide the case brought by each plaintiff separately as if it
were a separate lawsuit. Each plaintiff is entitled to separate consideration
of each plaintiff's own claims.” These juror statements are, again,
inadmissible verbal reflections of the jurors’ mental processes. (See
Hedgecock, supra, 51 Cal.3d at p. 419.) And in any case, they do not support
the conclusion the jury failed to consider Boyko’s case separately. To the
contrary, they as readily suggest—especially given that McMahon had died
prior to trial and therefore was unable to contradict the testimony of any of
the three plaintiffs—the jurors were looking for corroborating evidence as to
each of the three plaintiffs. While Bogdan and Esfir presented such evidence,
Boyko did not.
Boyko’s third claim of misconduct is that the jury “abdicate[d]” its
responsibility as the trier of fact by concluding, contrary to the law, that if
they did not award damages to Boyko, the court would. In this regard she
points to juror declarations stating or agreeing that “[t]he jury as a whole
voiced agreement that if we were unable to come up with a dollar amount to
compensate Ms. Boyko, then the judge would be able to do so after review of
the case and evidence.” Again, such statements cannot be used to impeach a
jury verdict after-the-fact. As the court stated in People v. Sanchez (1998)
62 Cal.App.4th 460, “where, as here, the affidavit or declaration suggests
‘ “ ‘deliberative error’ in the jury’s collective mental process—confusion,
misunderstanding, and misinterpretation of the law,” ’ particularly regarding
26
‘the way in which the jury interpreted and applied the instructions,’ the
affidavit or declaration is inadmissible.” (Id. at p. 476, italics added.) “The
mere fact that such mental process was manifested in conversation between
jurors during deliberations does not alter this rule.” (Ibid.; accord, Mesecher
v. County of San Diego (1992) 9 Cal.App.4th 1677, 1682–1684 [declarations
by several jurors stating that a majority of the jurors had relied on an
erroneous definition of battery to reach its verdict held inadmissible under
Evidence Code section 1150].)
In sum, these three claims of error as to the denial of Boyko’s new trial
motion fail on the second step as she presented no admissible evidence of
juror misconduct. We therefore need not, and do not, consider the third step
of the misconduct analysis as to these claims.
At several points in her briefing, Boyko also suggests the trial court
should have granted a new trial because jurors felt rushed in their
deliberations. Not only is this assertion based on inadmissible statements in
the juror declarations, but even putting that aside, two jurors, including the
foreman stated: “The jurors talked about feeling pressured by the
compressed time frame of deliberations but were able to reach agreement
and complete all of the verdict forms.” Accordingly, whatever pressure some
jurors may have felt—an issue we do not reach—was, in the end, not
prejudicial as the jury was able to complete its charge to reach agreement
and decide the cases.
UCL Claim
Boyko maintains that in denying her UCL claim, the trial court
usurped the jury’s role by improperly impugning her credibility. Specifically,
she contends the court’s denial of her UCL claim conflicted with the jury’s
27
finding she was owed wages and with three juror declarations stating the
jurors found Boyko credible.
Boyko is correct that, “in a case involving both legal and equitable
claims, findings made in connection with one set of claims are binding in a
subsequent disposition of the other set of claims.” (Rincon EV Realty LLC v.
CP III Rincon Towers, Inc. (2019) 43 Cal.App.5th 988, 992; see Hoopes v. Dolan (2008)168 Cal.App.4th 146, 158
[allowing first fact finder’s factual determination to bind the second “minimizes inconsistencies,” “avoids giving one side two bites of the apple,” and “prevents duplication of effort”].) It is also true that “UCL remedies are cumulative to remedies available under other laws ([Bus. & Prof. Code,] § 17205) and, as [Business and Professions Code] section 17203 indicates, have an independent purpose—deterrence of and restitution for unfair business practices.” (Cortez v. Purolator Air Filtration Products Co. (2000)23 Cal.4th 163
, 179–180 (Cortez).)
However, while a court trying equitable claims after a jury trial is
generally bound by the jury’s findings, a court’s discretion as to whether
restitution should be awarded in this context is “very broad.” (Cortez, supra,
23 Cal.4th at p. 180.) Business and Professions Code “[s]ection 17203 does
not mandate restitutionary or injunctive relief when an unfair business
practice has been shown. Rather, it provides that the court ‘may make such
orders or judgments . . . as may be necessary to prevent the use or
employment . . . of any practice which constitutes unfair competition . . . or as
may be necessary to restore . . . money or property.’ [Citation.] That is, as
our cases confirm, a grant of broad equitable power. A court cannot properly
exercise an equitable power without consideration of the equities on both
sides of a dispute.” (Cortez, at p. 180.)
28
As we have recited, the trial court found Boyko’s testimony as to the
amount of her damages—specifically her claim that she was entitled to be
paid a 100 percent “ ‘pass-through’ ” rate (the amount billed to the clients for
her time, without deduction for overhead or profit)—was not credible and was
in conflict with her assertion that she was entitled to a 50/50 share of the
business profits. It further found Boyko failed to prove the amount of wages
owed to her as damages. In short, there is no conflict between the trial
court’s credibility assessment and finding, and the jury’s findings. Both the
court and the jury found Boyko’s testimony insufficient to prove the amount
of damages, if any, she was owed.
Even if we were to take into account the juror statements, which like
all the other juror statements on which Boyko relies are inadmissible under
Evidence Code section 1150, they do not conflict with the trial court’s
assessment of Boyko’s UCL claim. As discussed above, while the jurors may
have found Boyko generally credible, they also impliedly found her testimony
regarding the amount of damages she was owed so contradictory and
confusing they were unable to determine any amount. As the jury foreman
stated in his declaration: “All of the jurors voiced their agreement that the
dollar amount requested by Ms. Boyko’s lawyers seemed speculative because
there was no delineation of which of her duties the dollar amount applied.”
Boyko lastly claims the trial court erred by failing to award her at least
nominal restitution, pointing to the court’s “personal opinion” she had
received sufficient wages for the reasonable value of her work. However, in
reaching its ruling denying her UCL claim, the court was required to
consider the equities on both sides in deciding whether to make a restitution
award—i.e., whether she had been harmed and McMahon unjustly enriched.
These considerations included that: the jury was unable to find any specific
29
amount of damages owed; Boyko had received over $400,000 in lump sum
payments from McMahon that were not tied to any specific work she
performed in the 13 months at issue; her testimony with respect to what she
was owed was contradictory and confusing; and McMahon was not available
to confirm or contradict any of this contradictory and confusing testimony.
In sum, Boyko has not established any improper action by the trial court in
exercising its discretion under the UCL.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on
appeal.
30
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Langhorne Wilson, J.
A170449, Boyko v. McMahon
31