Kim v. Konad USA Distribution, Inc., 226 Cal. App. 4th 1336 (2014)
Following a bench trial, Esther Kim was awarded $60,000 against her former employer (Konad) and her former boss (Dong Whang) for sexual harassment and wrongful termination. Curiously, defendants did not challenge the pleadings or file any pretrial motion to dispose of any part of the case prior to the commencement of trial, asserting lack of jurisdiction based on the fact that Konad may have had fewer than five employees and Kim may have failed to exhaust her administrative remedies. It was only after the trial court issued its proposed statement of decision that the defense finally raised these issues – a strategy the appellate court referred to as “the road less travelled.” The Court of Appeal affirmed the judgment in favor of Kim, holding that “defendants forfeited any right they may have had (in the abstract) for a judgment of dismissal on the FEHA cause of action” and, in any event, “there is clear evidence in the record that plaintiff timely submitted verified administrative complaints against both defendants on all the claims pursued at trial and received right-to-sue letters for both defendants.” The Court also held that because plaintiff’s common law wrongful termination claim was based both on FEHA and the California Constitution, it was properly prosecuted against a company that may have had fewer than five employees because a “common law tort based on sexual harassment can be brought against an employer of any size.” The appellate court also failed to reverse the wrongful termination judgment against Whang (who was Kim’s supervisor but not her employer) because the issue was not timely raised in the lower court and because there was no evidence that Whang was actually prejudiced by the judgment, which held him and Konad liable for the undifferentiated sum of $60,000.