Park
v. Kim

























Filed 10/19/10 Park v. Kim
CA5















NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIFTH APPELLATE DISTRICT






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SEUNG CHEOL PARK, Plaintiff and Appellant, v. JENNIFER KIM, Defendant and Respondent.

F058623 (Super. Ct. No. S-1500-SV-262966) O P I N I O N

APPEAL
from a judgment of the Superior Court of Kern County. Larry A. Errea, Judge.

Henry M.
Lee and Douglas Han for Plaintiff and Appellant.

Ganong Law Office and Alisyn J.
Palla for Defendant and Respondent.

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Appellant,
Seung Cheol Park, challenges the judgment entered in favor of respondent,
Jennifer Kim, doing business as Ichiban Sushi #1and Ichiban Sushi #2, on his
complaint for various Labor Code violations.
According to appellant, substantial evidence does not support the trial
court's findings that he was exempt from the applicable wage order as an
executive employee and that he was not employed by respondent until the
restaurant opened. Appellant further
contends the trial court erroneously concluded that bookkeeping, tax and payroll
requirements do not apply to exempt employees.
Finally, appellant argues the trial court erred when it refused to
permit his claim for civil penalties under Labor Code^[1] section 2699.


As
discussed below, substantial evidence
supports the trial court's factual findings.
Moreover, the trial court acted within its discretion when it refused to
entertain appellant's section 2699 claim.
However, the trial court incorrectly concluded that appellant was exempt
from the Labor Code's bookkeeping, tax and payroll requirements. Accordingly, the matter will be affirmed in
part and reversed in part.

BACKGROUND

Appellant was employed by
respondent as the head sushi man when Ichiban Sushi #1 opened in January
2006. Appellant's responsibilities
included taking inventory of and ordering fish and supplies; creating and
adjusting menus; determining daily special menu items; overseeing food
preparation and service; interviewing, training and supervising other sushi
men; supervising waitresses; counseling the owner with regard to hiring and
firing employees; scheduling employees; and determining store hours. For his services, appellant was paid a flat
salary.

Before Ichiban Sushi #1 opened,
appellant assisted respondent with setting up the business for operation. Respondent had no prior experience with sushi
restaurants and therefore required help.


After
leaving respondent's employ, appellant presented claims to the labor
commissioner for respondent's alleged failure to pay overtime wages and provide
meal and rest breaks and for waiting time penalties. The labor commissioner issued an order,
decision and award. Appellant sought
review of this order by filing an appeal to the superior court under section
98.2.

Appellant's
first amended complaint included claims that had not been presented to the
labor commissioner. For the trial de
novo in the superior court, appellant additionally alleged that respondent
failed to provide an itemized statement regarding wages (§ 226), failed to
pay split shift wages, and illegally took tips.
Appellant also sought to collect civil penalties from respondent on
behalf of himself and all current and former employees under the Labor Code
Private Attorneys General Act of 2004 (§ 2698, et seq.).

Following a
bench trial, the court ruled in respondent's favor. The court found that appellant was exempt
from the applicable wage orders as an executive employee. The court further concluded that, due to this
finding, the court need not review the bookkeeping, tax, and payroll compliance
issues.

Upon
appellant's request, the court ordered respondent to prepare a proposed
statement of decision. The additional
findings relevant to this appeal are:
(1) appellant was not an employee of respondent from November 2, 2005,
to January 10, 2006, because Ichiban Sushi #1 did not open until January 10,
2006; (2) any work performed by appellant from November 2, 2005, to January 10,
2006, was not performed pursuant to any agreement with respondent and therefore
respondent was not responsible to appellant for any salary or wages during that
time; (3) due to appellant being an exempt employee, it was unnecessary for the
court to review issues concerning section 226 accounting requirements,
unlawful tip sharing, and unlawful paycheck deductions; and (4) because
appellant's section 98.2 appeal was solely based on wage and hour claims,
appellant cannot recover penalties pursuant to section 2699. Appellant filed objections to this proposed
statement of decision to which the court did not respond. The court then adopted the proposed statement
of decision as its own.

DISCUSSION

1. The trial court's factual
findings are supported by substantial evidence.

In
determining whether a judgment is supported by substantial evidence, the
appellate court may not confine its consideration to isolated bits of
evidence. Rather, the court must view
the whole record in a light most favorable to the judgment, resolving all
evidentiary conflicts and drawing all reasonable inferences in favor of the
trial court's decision. The appellate
court may not substitute its view of the correct findings for those of the
trial court. Instead, the court must
accept any reasonable interpretation of the evidence that supports the
factfinder's decision. Nevertheless, the
appellate court may not defer to that decision entirely. Substantial evidence is not synonymous with >any evidence. To be considered â€