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Kim v. Konad USA Distribution, Inc.

California Court of Appeals, Fourth District, Third Division

June 12, 2014

ESTHER KIM, Plaintiff, Cross-defendant, and Respondent,
KONAD USA DISTRIBUTION, INC. et al., Defendants, Cross-complainants, and Appellants.

Appeal from a judgment of the Superior Court of Orange County No. 30-2011-00489871, Gregory Munoz, Judge.

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Henry M. Lee and Michelle P. Tran for Defendants and Appellants.

Lee & Fields and Edward Y. Lee for Plaintiff and Respondent.

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Following a bench trial, the court awarded plaintiff Esther Kim $60, 000 against her former employer, defendant Konad USA Distribution, Inc. (Konad), and her former boss, defendant Dong Whang. Defendants appeal, citing the alleged failure of plaintiff to meet certain “jurisdictional” prerequisites (e.g., exhaustion of administrative remedies, proving Konad had five employees) in her sexual harassment and wrongful termination claims. We affirm the judgment.


Factual Background[1]

Plaintiff “started working for Konad in 2006 as an account manager. Her main duties were to process orders by phone and emails. Konad’s business involved the distribution and sales of nail art kits.... Mr. and Mrs. Whang were actively involved in the operation of the business. Dong Whang was the CEO and sole shareholder.... [T]he business grossed about two million dollars in 2012.”

“In 2007 Plaintiff moved to La Habra to be closer to her job.... [I]t was about this time that Dong Whang commenced a pattern of sexually harassing Plaintiff.... [O]ver the next several years, Defendant Whang would regularly make comments to Plaintiff concerning sexual matters. He questioned Plaintiff about her sexual activities with her boyfriend, whether she used sex toys, and whether she did Kegel exercises. He would comment on other women’s breasts and buttocks and would tell Plaintiff that hers were better. He also related stories about a friend that would have sex with women and then go home and have sex with his wife. On one occasion he suggested that Plaintiff sit on his lap, which offer Plaintiff declined. Whang asked her if she thought that Whang was trying to get her to go to bed with him. She responded that he was disgusting. At work their desks were across from each other and he would leer at her almost on a daily basis and stare at her breasts and legs. He related stories of monks and their small penises allegedly due to lack of use.

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There were other unsolicited sex-laden utterances that occurred daily and eventually evolved into unwanted touching of Plaintiff’s body by Whang.”

“Whang got into the habit of hugging Plaintiff and patting her on the buttocks. On a return motor trip from Las Vegas with only the two of them present, he placed his hand on her thigh. He came to her new apartment in La Habra with dinner and a bottle of vodka. Upon leaving the apartment he hugged Plaintiff for a bit longer than usual. At a trade show in Chicago he followed her to her room to allegedly retrieve some medication that had inadvertently been placed in an office bag that Plaintiff maintained. Upon leaving he gave her a very long hug which caused Plaintiff to start crying.”

“Plaintiff finally found the hostile environment so stressful that she wrote to Whang on November 12, 2010, that she would not be returning to work. Plaintiff claims that Whang had fired her by telling her to ‘take her last paycheck and go and make a lot of love with her boyfriend.’ Plaintiff was single, in her early twenties during this period of time and was quite attractive. On the other hand, Whang was pushing sixty and fairly plain-looking. Plaintiff testified that Whang volunteered to pay $500.00 a month for one year to help pay for Plaintiff’s apartment rent. Whang asked that Plaintiff not tell his wife about these payments.”

Cathy “Lim worked at Konad for about fifteen months. [Lim] remained there for another three months after Plaintiff left.... Whang often talked [to Lim] about Plaintiff and sex in the same breath. He told Lim that he thought that Plaintiff’s boyfriend was using her mainly for sex. He referred to Plaintiff as a slut. It was clear to Lim that Whang was obsessed with Plaintiff and Lim warned her to be careful with Whang, especially when they were alone. Plaintiff related to Lim many of the incidents described above.”

Procedural History

In July 2011, plaintiff filed a civil action against Konad and Whang. Plaintiff’s complaint included four causes of action relevant to this appeal: (1) sexual harassment (quid pro quo); (2) sexual harassment (hostile work environment); (3) retaliation; and (4) wrongful termination in violation of public policy. The first three causes of action were pleaded under the California Fair Employment and Housing Act (FEHA; Gov. Code, ...

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