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Davila v. Nickell10/26/2005
it and form your own opinion." (Italics added.)
The court also gave the jury detailed instructions on the meaning of an agency relationship, and told the jury it could find a "principal guilty of oppression, malice or fraud based upon acts of an agent if, but only if, you find by clear and convincing evidence that the principal had advanced knowledge of the unfitness of the agent and with conscious disregard of the rights and safety of others employed that person, or the principal authorized or ratified the conduct which is found to be oppression, malice or fraud." The court additionally instructed the jury that " lthough there is more than one defendant in this suit, it does not follow from that fact alone that if one is liable, that are all liable. Each defendant is entitled to a fair and separate consideration of that defendant's defense and is not to be prejudiced by your decision as to others. Unless otherwise stated, the instructions apply to the case of each defendant. Decide each defendant's case separately."
Viewed together, these instructions effectively informed the jury that it had the obligation to make the agency and joint venture factual determinations according to its own evaluation of the evidence, rather than from the court's alter ego finding. The jury's actions during deliberations in asking for clarification on the definition of a "joint venture" shows the jury understood its role in making its own factual determinations on this issue. Further, the jury affirmatively found by clear and convincing evidence that the Louies acted with the requisite knowledge and/or that the Louies authorized or ratified the conduct, reflecting the jury made the specific agency findings necessary to support the Louies' liability for the tortious conduct.
Moreover, the evidence that Rumjahn acted as the Louies' agent for purposes of the Sun Villa construction project was compelling. Rumjahn had been the Louies' agent in managing their numerous real estate holdings for more than 15 years. Rumjahn admitted acting on behalf of the Louies on the Sun Villa project, and that the Louies directed him to do so. Mr. Louie admitted that before he left for China he told Rumjahn to "do whatever was necessary to keep the project going." Even after the lawsuit was filed, Rumjahn continued to act as the Louies' agent, including to manage the Sun Villa apartments. Mr. Louie was the president of Sun Villa Inc., and was required to approve all corporate acts.
Although plaintiffs' counsel used the alter ego finding during closing arguments to urge the jury to make inferences on the joint venture finding, counsel did not object to these arguments on the basis of relevancy. More important, plaintiffs' counsel never suggested that the court's alter ego finding relieved the jury from properly applying the law on the meaning of an agency relationship. There is little conflict in the evidence, which shows, overwhelmingly, that Rumjahn was the Louies' agent for purposes of the Sun Villa project at the time of the accident. The jury was properly instructed as to the plaintiffs' burden to show agency. It deliberated for a very short time and the vote was unanimous.
In view of the other instructions and the strong evidence of agency/joint venture relationships, it is not reasonably probable the alter ego instruction affected the outcome of the trial.
B. Issue of Employer's Identity
The Louies next contend the court erred in instructing the jury that Joadd was Davila's and Barraza's employer. We find no prejudice because the court cured the error.
1. Factual Background
At the conclusion of the evidence, the court granted a direct
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