Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC355812 Elizabeth A. White, Judge.
Law Office of Jeanne Collachia and Jeanne Collachia for Defendant and Appellant.
Fisher & Phillips, Christopher J. Boman and Christina M. Kotowski for Plaintiff and Respondent.
CHAVEZ, J.
Mahmoud Karkehabadi, also known as Mike Karkeh (appellant), appeals from a judgment after jury trial. Alliance Group Entertainment, Inc. (Alliance), Confessions of a Pit Fighter, Inc. (Confessions), and Todd Chamberlain (aka Tad Chambers) (Chambers) (collectively defendants) were sued by Monarch Consulting, Inc. doing business as PES Payroll (respondent) for breach of contract, equitable indemnity, contractual indemnity, and negligent misrepresentation after respondent was ordered to pay workers’ compensation to an individual who was injured during the filming of the movie Confessions of a Pit Fighter (the movie).
Alliance, Confessions, and Chambers are not parties to this appeal.
The jury found that all four defendants breached their contract with respondent and that all defendants except Chambers made a false representation of material fact to respondent. By special verdict, the jury found that Confessions, Alliance, and appellant were alter egos of each other. Respondent filed a motion for attorney fees and was awarded $261,176.50 plus costs in the amount of $22,312.87. The final judgment awards respondent $79,267.65 plus $22,312.87 in costs and $261,176.50 in attorney fees, for which all defendants were found to be jointly and severally liable.
We find no reversible error and affirm the judgment.
CONTENTIONS
Appellant contends that the trial court erred by: (1) excluding evidence of custom and practice in the entertainment industry; (2) excluding the movie script from evidence; (3) excluding evidence of the nature of “B” movies; and (4) designating respondent as the prevailing party. Appellant also argues that the alter ego finding was not supported by the evidence.
FACTUAL BACKGROUND
Appellant was the CEO of Alliance during the relevant time period. In 2005, defendants filmed and produced the movie. Jacov Bresler (Bresler), who had been in the entertainment business for 29 years, acted as the line producer on the movie. Bresler was responsible for engaging a payroll services company, and he contacted respondent. He looked for a payroll services company for a small budget action movie which also included a workers’ compensation package. The individual with whom he spoke asked that he send a script.
When Bresler spoke with Stuart Grant (Grant), the CEO of respondent, Grant asked him if there were “any big stunts in the movie.” Bresler responded that they were taking out all of the chase scenes, car hits and explosions, and that there would be only one major stunt, which was a window jump. Grant informed Bresler that if the window fall was any higher than 10 feet, it would not be covered. Bresler assumed that Grant had read the script, since a respondent employee had asked Bresler to send it. Bresler testified that he “assume[s] everybody reads the script.”
A written production services agreement was entered into between Confessions and respondent. The agreement is undated. Chambers, as COO, signed on behalf of Confessions, and Tina Palmer signed on behalf of respondent. Paragraph 4 of the agreement specified that “Stunts and Pyrotechnics must be performed by contractors unless otherwise approved by PES in writing. Such contractors must provide proof of Workers’ Compensation.” Paragraph 5 of the agreement required Confessions to “immediately report to PES all accidents and injuries to employees.” Paragraph 15 provided for “One Stunt Hi-Fall from window, not more than a 10 foot fall.”
At trial, the testimony of Dean Harvey (Harvey), also known as Bolo Dar’Tainian, was read to the jury. Harvey was hired by Alliance to work on the movie. Harvey never saw the script. He was hired to work on a fight scene, and was told to ad lib fight verbiage such as “bring it on, come get it.” Harvey worked on the same fight scene for two days. On the first day, during a sequence in which he slammed the other actor on the ground, he injured his knee on a rock. Harvey also injured himself on the second day of filming. The other actor was supposed to double kick Harvey in the face, at which time Harvey was to “take a step back and jump high, like he busted me and he kicked me up in the air and land.” In taking the step back to jump, Harvey’s foot slipped, causing him to land with his arm bent behind his back. He landed on his right elbow and dislocated it. In addition, he dislocated his shoulder, tore the rotator cuff and all the ligaments in his shoulder. Despite these injuries, Harvey finished filming the fight scene, which lasted about 10 more seconds. Harvey then went to the medic, who said nothing could be done for him without surgery. After unsuccessfully attempting to see a local doctor with the assistance of the movie staff, Harvey went to a surgeon he had seen before in the State of Florida, where he resides.
Rhonda Bingham, an employee of respondent, was paymaster for the movie. She testified that Harvey was listed as an “actor” on the final cast list, not a stuntman. However, when Grant received a phone call from Harvey’s lawyer in August 2005, Grant claimed that what Harvey did in the movie was a stunt, and suggested that he call the Screen Actor’s Guild (SAG) asserting entitlement to stunt pay. Grant got the form for Harvey and helped him fill it out. However, SAG denied the claim, as Harvey was not a member.
Harvey filed a workers’ compensation claim alleging that he had injured his shoulder while filming a fight scene in the movie. Respondent argued that Harvey was not its employee under the contract between respondent and defendants because Harvey was injured while performing stunts rather than acting, and stunts were not covered under the contract. On July 10, 2006, a workers’ compensation administrative law judge (ALJ) issued an opinion finding that Harvey was an employee of respondent and that respondent was the employer liable under Labor Code section 3602, subdivision (d). The ALJ further found that Harvey had sustained the injury in the course of his employment.
Respondent filed a petition for reconsideration, challenging the July 10, 2006 order. Respondent again argued that Confessions had misidentified Harvey as an actor, rather than a stuntman, and that the contract was not enforceable due to this misrepresentation of fact. The ALJ denied the petition, finding that the contract between respondent and defendants was valid and enforceable under Labor Code section 3602, subdivision (d), and that respondent was properly found to be the liable employer. The ALJ noted that “If PES has been wronged by a misrepresentation by Confessions, or has an action for breach or rescission of contract against Confessions, its remedy lies in the Superior Court, rather than in a determination by this tribunal that the employment relationship does not exist.”
PROCEDURAL HISTORY
On July 21, 2006, respondent filed its complaint against defendants, alleging breach of contract, equitable indemnity, contractual indemnity, and negligent misrepresentation.
A jury trial was held in September 2008. Respondent’s theory at trial was that defendants “covered up” Harvey’s injury, failed to timely report it, then three weeks later submitted false time sheet information for Harvey, concealing the fact that he had performed a stunt and been injured. Respondent, unaware of the deceit, paid Harvey’s paycheck and was then held liable for his workers’ compensation claim.
By special verdict, the jury found that all four defendants breached the contract with respondent and that the breach caused damages to respondent in the amount of $79,267.65. The jury found that all defendants except Chambers made a false representation of an important fact to respondent on which respondent reasonably relied to its detriment. Respondent was damaged as a result of the negligent misrepresentation in the amount of $79,267.65. In addition, the jury found that Confessions and Alliance were alter egos, and that appellant, Alliance, and Confessions were all alter egos of one another.
On October 28, 2008, respondent filed a motion for an award of attorney fees of $280,546.50 based upon Code of Civil Procedure sections 1033.5, subdivision (a) and 2033.420. Additionally, respondent filed a memorandum of costs seeking $22,312.87 in costs. Following a hearing on the motion for attorney fees the court awarded respondent attorney fees in the amount of $261,176.50 and costs in the amount of $22,312.87. The final judgment awarded respondent $79,267.65 plus $22,312.87 in costs and $261,176.50 in attorney fees, collectable from all defendants, jointly and severally.
On January 14, 2009, appellant filed a notice of appeal.
DISCUSSION
I. Exclusion of custom and practice evidence
A. Appellant’s argument
Appellant’s first argument is that the trial court erroneously excluded the testimony of his expert witness, who would have testified to custom and practice regarding contract formation in the entertainment industry.
Appellant’s expert was Richard Marks (Marks), a transactional attorney whose expertise is in the entertainment industry. Appellant intended to elicit testimony from Marks suggesting that, given the genre and the storyline of the movie, respondent should have known that the movie involved fighting and should have weighed those risks before providing the insurance. Marks would have testified that it is industry practice for a payroll services company to familiarize itself with the script, the performers, and the scenes prior to executing a contract with a production company. According to appellant, Marks’s testimony as to custom and practice was critical to demonstrate that in this context, neither party could have understood the fight scenes to constitute “stunts.”
B. Standard of review
A trial court’s decision to exclude evidence is reviewed under the deferential abuse of discretion standard. (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 986.) “‘[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.’ [Citation.] Appellate courts will disturb discretionary trial court rulings only upon a showing of a clear case of abuse and miscarriage of justice. [Citation.]” (Ibid.) This standard is applicable when we review a trial court’s ruling on the admissibility of expert opinion evidence. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928.)
C. The trial court’s decision
Marks was designated as an “entertainment law specialist” with over 25 years of experience.
“[Marks] is expected to testify on the custom and practice in the industry as it relates to the rights, duties, and obligations of a production company and payroll services for compensation and the benefits of employees in motion picture productions. He will further testify on any and all issues pertaining to the payroll service contract and indemnification by the contractee of the payroll service.”
During voir dire of the witness, appellant’s attorney asked Marks about the “due diligence... performed before a payroll company undertakes workers’ comp. insurance responsibilities.” Marks responded that payroll companies normally ask lots of questions in an effort to determine “any issues of potential liability and danger on the set.” When appellant asked Marks about the contract at issue, respondent’s attorney objected. The court sustained the objection pursuant to Evidence Code section 352 (section 352).
The court then addressed its concerns with Marks’s “due diligence” testimony:
“Let me just indicate for the record that in reviewing the complaint, the complaint is captioned for breach of contract, equitable indemnity, contractual indemnity, and negligent misrepresentation. The answer raises a number of affirmative defenses, but it appears that what’s happening here is we’re turning the issue of liability somewhat on its head. In other words, plaintiff is not -- there’s been no claim that plaintiff, in any way, breached this contract. In fact, plaintiff paid a claim. Defense is turning it around and saying, ‘Well, gee because plaintiff didn’t know or didn’t do due diligence, then they should be prevented from recovering, ’ where, in fact, there’s a claim of misrepresentation made by the plaintiff.... And I’ve been troubled by this for days hearing defense walk around with this poster and saying, ‘Well, plaintiff should have known.’ But this is a contractual claim. This is not a negligence claim. This is not anything other than a request that’s made to the court on the part of the plaintiff to recover something which they feel they should not have had to pay based upon a claim that defendant misrepresented or failed to -- basically, made a misrepresentation, said the only stunt was the 10-foot drop from the window. So this due diligence I don’t think plays any part in the analysis.”
Appellant’s counsel indicated that Marks was prepared to offer testimony on “more... than just the... due diligence, ” including “some of the terminology in the agreement, ” including stunts and pyrotechnics. The court read over Marks’s designation, and concluded: “The testimony that he’s offered related to custom and practice and due diligence is completely irrelevant, and he’s not been designated for any other purpose, so I’m not going to allow him to testify.”
Appellant moved for a mistrial when the trial court ruled to exclude Marks’s testimony. The court articulated its ruling on appellant’s motion for mistrial as follows:
“There’s two things this court is worried about. This whole notion of due diligence, again, ... turns the law on its head. It turns a breach of contract, oh, well you should have been on guard in case there was a misrepresentation. That’s not the law. The second concern that the court has is he’s invading the province of the court in terms of legal instructions as to breach of contract, and he’s invading the province of the jury as to what the contract says. The ambiguity in the contract relates to stunts. He’s not testifying as to what a stunt is. I think that the jury does need expert testimony on the issue of a stunt. The jury does not need expert testimony, which would be either a legal opinion or stating what the contract says. They can read it for themselves. Again, as to the due diligence, this is breach of contract and negligent misrepresentation.... There’s nothing that this witness can add which assists on any of those particular causes of action.... He’s not here to testify as to what a stunt is. That’s the only issue that the jury needs to decide in this case. So, on that basis, the motion for mistrial is denied.”
Following the presentation of evidence, the question of the meaning of the term “stunts” was submitted to the jury.
The jury instruction read: “PES Payroll and defendants dispute the meaning of the following term contained in their contract: ‘Stunts.’ [¶] PES Payroll claims that the term means: An act or acts that require special skill or training and that has a risk of injury to the performer. Defendants claim that the term ‘Stunts’ does not include fight choreography and that the term is ambiguous. PES Payroll must prove that its interpretation of the term is correct. [¶] In deciding what the terms of a contract mean, you must decide what the parties intended at the time the contract was created. You may consider the usual and ordinary meaning of the language used in the contract as well as the circumstances surrounding the making of the contract.” We decline to address whether it was proper for the court to leave these questions to the jury in the context of this case, as neither party has raised the issue.
D. No abuse of discretion occurred
We decline to find that the trial court’s ruling excluding Marks’s testimony was an abuse of its discretion. Appellant did not suggest that Marks would provide testimony to guide the jury on the usual and ordinary meaning of the term “stunts.” Nor did appellant suggest that Marks would provide testimony regarding the circumstances surrounding the making of this particular contract. Instead, Marks’s testimony concerned the normal custom and practice for companies considering entering into payroll contracts such as the one at issue.
The court instructed the jury that the relevant question for them to resolve was what the parties intended at the time the contract was created. The jury had before it evidence of the commonly accepted meaning of the term “stunts.” The jury also had before it specific evidence as to the circumstances surrounding the formation of this contract. Based on this evidence, it was up to the jury to determine the intent of the parties as to their use of the term “stunts” in this contract.
Respondent took the position that the term “stunt” is a term universally accepted to include choreographed fighting. Respondents’ expert, Simon Rhee, is an award winning stuntman. Rhee has also worked as a stunt coordinator on numerous occasions. Having reviewed the relevant scenes in the movie, Rhee testified that the type of fighting shown is “considered a stunt in my business.”
As set forth above, Chambers testified that he was told to send the script to respondent. However, Grant testified that he never received it, didn’t care what the script was about, and had no knowledge of the script. Grant further testified that, prior to agreeing to enter the contract, he specifically inquired as to any stunts that would be performed during the filming. He was informed that there would be only one major stunt, which was a window jump.
The trial court did not abuse its discretion in determining that evidence of what is normally done before entering such a contract; what respondent should have done before entering the contract; or Marks’s opinion of what the parties must have intended the disputed term to mean, was irrelevant and unduly prejudicial.
Appellant suggests that the trial court’s decision not to allow Marks to testify was based on the fact that the court had promised the jurors that the trial would be finished the following day. Appellant argues that defendants were pressured to rush through their case in one day. We reject this argument, as the trial court articulated valid reasons for excluding the testimony, and made no reference to time.
E. The cases cited by appellant do not dictate a finding of error
1. There is no dispute as to the admissibility of expert testimony as to custom and practice in general
Appellant cites several cases as authority for the proposition that expert opinion is admissible regarding the existence of custom and practice in a particular trade. (Ecco-Phoenix Electric Corporation v. Howard J. White (1969) 1 Cal.3d 266, 271; Balfour, Guthrie & Co. v. Gourmet Farms (1980) 108 Cal.App.3d 181, 187; Conolley v. Bull (1968) 258 Cal.App.2d 183, 189; Anaheim Builders Supply, Inc. v. Lincoln Nat’l Life Ins. Co. (1965) 233 Cal.App.2d 400, 409.) This legal principle is not disputed by respondent, and none of these cases addresses the relevance of such expert opinion testimony under the circumstances before us. In addition, appellant quotes from Midwest Television, Inc. v. Scott, Lancaster, Mills & Atha, Inc. (1988) 205 Cal.App.3d 442, 451 as support for the proposition that evidence of custom or standard practice is admissible to interpret the terms of a contract. However, Midwest Television does not address the issues concerning section 352 with which the trial court was primarily concerned in this case. We decline to address these cases further.
Appellant cites Wolf v. Superior Court (2004) 114 Cal.App.4th 1343 as a comparable case. In Wolf, the meaning of the term “gross receipts” in the contract between the parties was disputed. Disney asserted that the meaning of the term was clear and unambiguous, while Wolf asserted that it was commonly understood to mean “‘money or the value of other consideration received by the studio.’” (Id. at pp. 1348-1349.) The Court of Appeal held that the trial court should have admitted the testimony of Wolf’s expert regarding industry custom and usage of the term “gross receipts” because such testimony would expose a latent ambiguity in the contract. (Id. at p. 1357.) The case is unhelpful to appellant because, unlike Wolf’s expert, Marks was not designated to provide evidence of industry custom and usage of the disputed term. Instead, his testimony concerned the precautionary steps that the respondent should have taken to understand the nature of the film before agreeing to insure the defendants. In addition, unlike Wolf’s expert, he was asked to provide his “opinions” as to how the word “stunts” was used in this particular agreement between the parties. As the trial court pointed out, that determination was in the province of the jury. In sum, the Wolf case is not comparable on the significant issues at hand and does not provide persuasive authority regarding the matter before us.
2. Marks’s testimony was not “outcome determinative”
Appellant argues that his proffered evidence that a payroll company will generally not enter into a contract with a producer until it has read the script was “outcome determinative.” In support of this argument, appellant cites Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103. The Gordon court noted that “when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven, the error is reversible per se.” (Id. at p. 1114.) In Gordon, the trial court refused to allow the plaintiff in a products liability action to introduce expert testimony opining that the roof design on a particular car was not sufficiently strong. (Ibid.) The opinion noted that without expert testimony, the plaintiff had no realistic way of proving his roof defect claim. (Id. at p. 1116.)
Appellant argues that, as in Gordon, without Marks’s expert testimony defendants had no realistic way of countering the evidence respondent presented to prove that all fights in movies are stunts. We reject this argument. Appellants could have presented conflicting evidence as to the generally accepted meaning of the term “stunts.” Appellants could have called an expert to testify that, contrary to respondent’s position, fight scenes in movies are not always considered to be stunts. In fact, the transcript suggests that appellant had designated an expert for that purpose but chose not to call him. Marks’s testimony was not outcome determinative, and the trial court’s exclusion of the testimony was not error.
After the trial court had ruled that it would not permit Marks to testify, appellant’s counsel stated: “I have one day to put on a case of defense here, and now I have to think about who we’re going to call, because you’ve just taken away our only expert designated in this case.” Respondent’s counsel replied: “For the record, Mr. Wilson was designated to testify about the question of stunts... I have no objection to Mr. Wilson coming in here and testifying on whether this footage is a stunt or not.”
3. Appellant’s reasonable expectations were not at issue
Finally, appellant turns to insurance law. He cites Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538 for the proposition that, in interpreting an ambiguous contractual term in an insurance contract, “the court must first attempt to determine whether coverage is consistent with the insured’s reasonable expectations.” (Id. at p. 1551.) Central to understanding appellant’s reasonable expectations, he argues, is the fact that appellant reasonably believed that respondent was familiar with the script.
Appellant has not provided a citation to the record showing that he raised this aspect of insurance law at any stage of the trial. In fact, he admits that AIG was the insurance company that provided respondent with workers’ compensation insurance -- although respondent had a $250,000 deductible. The question of the defendants’ reasonable expectations, as defined in insurance law, was not placed before the jury. Nor did appellant ask that the jury be instructed to consider the defendants’ reasonable expectations. “It is well settled that points not asserted in the trial court are deemed waived and will not be considered for the first time on appeal. [Citation.]” (Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2008) 165 Cal.App.4th 1000, 1007-1008.) Under the circumstances, we find that appellant has forfeited his right to appeal this issue.
4. Conclusion
Appellant has provided no case law suggesting that evidence of custom and practice as to respondent’s due diligence, or lack thereof, is relevant to the meaning of the contractual term “stunts” in this matter. While the trial court felt that expert testimony was admissible to assist the jury in determining the meaning of that term, the court felt that Marks’s testimony was irrelevant and unduly prejudicial. Appellant has failed to show that this ruling was an abuse of discretion or that it resulted in a miscarriage of justice.
II. Exclusion of movie script
Appellant argues that it was error for the trial court to exclude the movie script from evidence. Appellant claims that the court’s decision to deny its expert testimony, coupled with its refusal to admit the script itself into evidence, left defendants with no defense.
We find that appellant failed to preserve this issue for appeal. When asked whether he “just want[ed] the first two pages” of the script admitted into evidence, appellant replied in the affirmative. Those pages were then admitted, over respondent’s objection. Appellant presented no objection to the trial court’s decision to admit only the first two pages of the script. Nor did he present an offer of proof as to why the entire script should be admitted. Under the circumstances, appellant has forfeited his appeal of this issue. (Evid. Code, § 354, subd. (a).)
Even if appellant had properly preserved this issue for appeal, we find no abuse of discretion in the trial court’s determination that the script had not been properly authenticated. The court allowed appellant the opportunity to address its concerns when appellant first attempted to have the document admitted, stating, “I’ll reserve. Perhaps you can get another witness who can further authenticate it.” Having failed to take the opportunity to address the court’s concerns regarding authentication of the entire document, appellant cannot be heard to complain that it was not admitted.
III. Exclusion of evidence of the nature of “B” movies
Appellant argues that the nature of low-budget or “B” movies is highly relevant to the interpretation of the contract at issue. Such movies, appellant argues, generally focus on action. In order to get this message across to the jury, appellant attempted to ask Grant about his beliefs as to the subject matter of the movie and his experience providing payroll services for other movies of the same genre. The court sustained objections to most of these questions on the basis of section 352.
The court determined that inquiry into Grant’s knowledge of the general subject matter of B movies, and his company’s involvement in other contracts of a similar genre, would cause undue consumption of time. The court reasoned: “Under the contract, he has the right to do it if it’s authorized under the contract. So unless we have each and every contract [with other action films respondent had insured] and have a separate trial as to each and every contract, it’s prejudicial.... I don’t want to spend weeks here.”
Under section 352, the court has broad discretion to exclude evidence that will necessitate undue consumption of time. As the trial court noted, appellant’s line of questioning would have required inquiry into the nature of the fight or action scenes in other movies, the negotiations surrounding the formation of the payroll contracts for those movies, and an analysis of the contracts themselves. The court’s ruling excluding such evidence was not beyond the bounds of reason, and did not constitute an abuse of the court’s discretion.
IV. Prevailing party determination
Appellant next challenges the trial court’s determination that respondent was the prevailing party in this matter pursuant to Civil Code Section 1717. A trial court has broad equitable discretion to determine which party prevailed, or to determine that there was no prevailing party in a particular situation. (Jackson v. Homeowners Assn. Monte Vista Estates-East (2001) 93 Cal.App.4th 773, 787.) Thus, in reviewing the trial court’s decision, we use the deferential abuse of discretion standard. (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158.)
Appellant cites Hsu v. Abbara (1995) 9 Cal.4th 863 (Hsu) as providing the relevant guidelines for a trial court’s exercise of discretion under Civil Code section 1717. Under Hsu:
“[T]he trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’ [Citation].”
(Id. at p. 876.)
Appellant argues that respondent could not be considered the prevailing party under this definition. First, appellant argues, respondent lost on its contractual and equitable indemnity claims. In addition, although the jury determined that the defendants had breached the contract, the jury awarded respondent only half the damages it sought. Appellant interprets this as a finding that respondent and defendants were equally responsible for the underlying worker’s compensation claim. Since the jury split the financial liability, appellant argues, respondent cannot be considered the prevailing party.
Hsu does not suggest that the trial court’s prevailing party determination need be inflexibly applied based on the monetary award. Instead, the Hsu court emphasized, the question of litigation success should be guided by “‘equitable considerations.’” (Hsu, supra, 9 Cal.4th at p. 877.) The high court explained: “For example, a party who is denied direct relief on a claim may nonetheless be found to be a prevailing party if it is clear that the party has otherwise achieved its main litigation objective.” (Ibid.) Thus, contrary to appellant’s position, the jury’s award to respondent of half the damages respondent sought does not necessarily mean that respondent did not prevail.
In a special verdict, the jury found that defendants had breached their agreement with respondent. In addition, the jury found that certain defendants, including appellant, had made false representations to respondent. Despite the fact that the jury did not award respondent every penny it sought in damages, the trial court was well within its discretion in determining that respondent had achieved its main litigation objectives. (Hsu, supra, 9 Cal.4th at p. 877.)
V. Alter ego
The jury made special verdict findings that appellant, Alliance and Confessions were alter egos of each other. The court adopted the jury’s factual findings. The court noted that, “having heard the same testimony, ” the court found the findings to be appropriate.
Appellant challenges these findings. First, appellant attacks the jury instructions on the factors supporting alter ego liability. Appellant notes that the jury instructions were taken from Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 837, which states:
“The two requirements are (1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow. [Citations.]”
Appellant acknowledges that the jury instructions, which were based on this language, were proper. However, he argues that “[t]he problem with the jury instructions on alter ego liability is that there are other important factors that must be considered, and the jury was not instructed on these factors.” Appellant fails to specify what other factors he refers to, nor does he point to any place in the record where he offered any additional instructions on this issue. Under the circumstances, we decline to consider any error in the trial court’s failure to instruct on other factors. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131 [party’s “failure to request any different instructions means he may not argue on appeal the trial court should have instructed differently”].)
Next, appellant argues that the evidence did not support a finding of alter ego liability. In sum, his position is that the factors supporting the alter ego finding are common to all small corporations. For example, appellant argues, the fact that the directors and shareholders were all related is not unusual. In addition, the fact that Alliance had not made a profit on Confessions was not unusual. Alliance went on to produce three feature films plus one short -- therefore, appellant argues, it was not a sham company. Further, although defendants had advanced personal money, appellant argues, this was not comingling of funds.
We find appellant’s argument to be incomplete. We must begin our analysis with the presumption that the evidence sustains each finding of fact. Appellant carries the burden on appeal of demonstrating that there is no substantial evidence to support the challenged findings. “‘To this end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs [citations].’ [Citation.]” (Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687.) Appellant has set forth certain factors which, he argues, are insufficient to support a finding of alter ego. However, he does not purport to have set forth all of the evidence supporting the jury’s special findings that (1) there was such unity of interest between Confessions, Alliance, and appellant that their separate personalities no longer existed; and (2) failure to disregard the corporate entities would sanction a fraud or promote injustice. In fact, the jury answered numerous specific questions regarding the issuance of stock, inadequate capitalization, the disregard of legal formalities, concealment of identity of ownership, and the comingling of assets, among other things, which appellant has failed to fully address. Under the circumstances, we must presume that substantial evidence existed to sustain these findings. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)
Appellant devotes several pages to an argument that there was no evidence of bad faith on the part of appellant. He cites Associated Vendors, Inc. v. Oakland Meat Co., supra, 210 Cal.App.2d at page 842 for the proposition that “some conduct amounting to bad faith” must make it inequitable for the owner of a corporation to hide behind its corporate veil. The instructions submitted to the jury on alter ego liability did not include any requirement that the jury find bad faith on the part of appellant, and appellant does not indicate that he proposed any such instruction. Nor does he point to any legal argument to the trial court that it should consider the question of bad faith in addition to the factors considered by the jury. Further, the jury’s finding that appellant had made a substantial misrepresentation to respondent is sufficient to support an implied finding of bad faith.
Next, appellant challenges the trial court’s failure to analyze the jury’s factual findings. In rejecting the defendants’ motion to bifurcate the alter ego issues from the liability issues, the court stated: “[T]he jury could render an advisory opinion on the issue of alter ego. And that based upon that advisory opinion, the court would make its own findings.” Appellant complains that after the jury’s verdict and factual findings were announced, the court gave no further consideration or analysis to the alter ego issue. The court instantly announced: “The court will adopt the jury’s factual finding on alter ego liability as the verdict of the court. The court, having heard the same testimony, finds the findings to be appropriate.”
Appellant argues that the court should not have adopted the jury’s factual findings without analyzing whether these findings justified imposing personal liability on appellant. Appellant points out that: (1) the jury found that appellant did not treat corporate assets as his own; (2) a California corporation can be owned by a single individual, so the fact that Alliance was family owned is irrelevant; and (3) Alliance’s 2006 financial statement that showed a loss must be considered in light of the fact that it had produced films that had not yet made a profit. Appellant argues that the court should have weighed these factors against the public policy that favors allowing business entrepreneurs to do business under the corporate form.
At the time the court announced its decision to adopt the findings of the jury, the court had just finished going over 20 questions with the jury that were relevant to the alter ego verdict. The record reveals no objection on the part of appellant following the trial court’s decision to adopt these findings, nor is there any indication that counsel asked for the opportunity to further brief or argue this issue. In addition, appellant cites no legal authority supporting his position that the trial court should have engaged in further analysis. We find that no error occurred.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.