JUNG HEE OH v. GLIMCHER PROPERTIES LIMITED PARTNERSHIP

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Court of Appeal, Second District, California.

JUNG HEE OH et al., Plaintiffs and Appellants, v. GLIMCHER PROPERTIES LIMITED PARTNERSHIP et al., Defendants and Respondents.

B224046

Decided: January 19, 2012

Kaiser, Swindells & Eiler, Raymond T. Kaiser and J. Rodney DeBiaso for Plaintiffs and Appellants. Squire, Sanders & Dempsey, James H. Broderick, Jr., Anne Choi Goodwin and Christopher J. Petersen for Defendants and Respondents Glimcher Properties Limited Partnership, Glimcher Properties Corporation and Puente Hills Mall, LLC. Graves & Walton;  Law Offices of John R. Walton and John R. Walton for Defendant and Respondent David K. LeMons.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

After paying large sums of money to defendant Kevin Yoon for the assignment of a yogurt shop lease in the Puente Hills Mall, plaintiffs Jung Hee Oh and Lin Joon Oh sued Kevin 1 and his parents who are the tenants under the yogurt shop lease.   Plaintiffs also sought to hold the landlord, Glimcher Properties Limited Partnership, Glimcher Properties Corporation, Puente Hills Mall, LLC, and David K. LeMons (together Glimcher), liable under vicarious liability principles for the actions of Glimcher's lessees, the Yoons.   Glimcher successfully moved for summary judgment on the ground that indisputably plaintiffs never dealt with Glimcher prior to instituting this lawsuit;  Glimcher never spoke to plaintiffs or ratified any actions of any defendant;  and there was no employment relationship between Glimcher and anyone plaintiffs actually spoke to or dealt with, with the result that, as a matter of law, Glimcher cannot be held liable under agency or respondeat superior principles.   Plaintiffs appeal.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The events giving rise to the instant lawsuit

Glimcher owns and operates the Puente Hills Mall. Defendant David K. LeMons was an employee of Glimcher and the leasing director for Puente Hills Mall during the relevant time period.   Glimcher as landlord entered into a lease in August 2007 with Kevin's parents as tenants for the Snow Mountain yogurt shop at the Puente Hills Mall (the Snow Mountain lease).   Kevin, operating through Future Vision Enterprise, Inc. (FVE), represented his parents in connection with the Snow Mountain lease.   The Snow Mountain lease specifies that “The terms of this Lease shall not be interpreted to mean that Landlord [Puente Hills Mall, LLC] and Tenant [Kevin's parents] are partners or joint venture [r]s.”

Kevin then approached plaintiffs about various shopping mall leases and restaurant opportunities.   Plaintiffs and Kevin entered into a consulting agreement in August 2009 under which FVE agreed to assist plaintiffs in pursuing and leasing a yogurt business (the FVE consulting agreement).   Glimcher is neither a signatory to, nor mentioned in, the FVE consulting agreement.

Plaintiffs gave Kevin a check in the amount of $6,000 as a purported security deposit for a lease at the Puente Hills Mall. Plaintiffs left the payee line blank.   Kevin, not plaintiffs, wrote “Glimcher” on the payee line.   In addition, Kevin asked plaintiffs for a $10,000 check, payable to Kevin, as a leasing fee.2  Kevin represented to plaintiffs that the leasing fee would be paid to a person referred to only as “the old man.”   Kevin gave plaintiffs to believe that “the old man” was the most senior person in Glimcher's leasing office.   Eventually, Kevin indicated that “the old man” was LeMons and the reason the $10,000 check was to be made out to Kevin, not LeMons, was to pay “the old man” in cash.   The first time Kevin met LeMons was after this lawsuit was filed, although they had spoken and emailed before.   It later turned out that “the old man” was actually defendant Grace Lee.

Plaintiffs knew before paying any money to Kevin that the Snow Mountain lease would name Kevin's parents only, not plaintiffs, as lessees.   Kevin told plaintiffs that the lease would be transferred to plaintiffs.   Some time before May 2008, Kevin drafted a leasing rights transfer contract that was to provide for the transfer of all rights and responsibilities of a “Yougurville” business to plaintiffs (the leasing rights transfer contract).   Plaintiffs never signed the leasing rights transfer contract.   Despite the FVE consulting agreement and the many checks totaling thousands of dollars, plaintiffs never became tenants under the Snow Mountain lease.   Nonetheless, plaintiffs allege they invested large sums of money to renovate the Snow Mountain space at Puente Hills Mall.

2. The underlying lawsuit

Plaintiffs filed the instant lawsuit in July 2008, naming the Yoons, Kevin, LeMons, and Grace Lee,3 as well as Glimcher, among others.   The complaint alleged causes of action for breach of both oral and written contracts, breach of fiduciary duty, fraud, and unfair business practices in violation of the Unfair Competition Act (the UCL) (Bus. & Prof.Code, § 17200 et seq.).   The gravamen of the complaint was that Kevin and FVE were plaintiffs' consultants helping them obtain a lease for a frozen yogurt business at Puente Hills Mall. Kevin required that plaintiffs pay money to secure the lease, but the lease was never transferred from Kevin's parents to plaintiffs.   The sole grounds for holding Glimcher liable was vicariously.   Plaintiffs sought to hold Glimcher liable under respondeat superior theory, or as a joint venture, for the acts of Kevin, FVE, Lee, and the Yoons, who were alleged to be the actual or ostensible agents of Glimcher.

Glimcher and the Yoons demurred to the complaint.   The trial court sustained the demurrer to the first and second causes of action for breach of written and oral contracts without leave to amend.   The court explained that the only written lease alleged in the complaint was the Snow Mountain lease, but the only parties to that lease are the Yoons and Glimcher.   Plaintiffs alleged no facts showing the terms of any written agreement between plaintiffs and Glimcher.   Despite numerous attempts to amend the cause of action for breach of an oral contract, the allegations remained “wholly unclear and contradicted.”   As for the remaining causes of action – breach of fiduciary duty, fraud, and violation of the UCL – the court observed that the alleged wrongdoing was based on Kevin's conduct, which conduct was purportedly ratified by Glimcher as part of the scheme to defraud.   The court stated, “Whether or not this can be proven up on the merits, it is adequate, even if borderline, for the pleading stage.”  (Italics added.)

3. Summary judgment

a. Glimcher's motion

Once the case was at issue, Glimcher moved for summary judgment on the ground there was no triable issue of material fact because plaintiffs could not demonstrate any agency relationship between Glimcher on the one hand, and Kevin, the Yoons, or Lee on the other.   The undisputed facts demonstrated that neither Kevin, the Yoons, nor Lee were ever employed by Glimcher, and Glimcher did nothing to cause plaintiffs to believe Kevin, the Yoons, or Lee had the authority to speak for, or on behalf of, Glimcher with the result, as a matter of law, Glimcher could not be held vicariously liable as the actual or ostensible principal.   As for LeMons, Glimcher argued, although he was an employee of Glimcher, plaintiffs did not dispute they had no contact with LeMons, with the result, as a matter of law, he did not commit any tort with respect to plaintiffs for which Glimcher would be vicariously liable.

Factually, Glimcher demonstrated that plaintiffs had no contact with Glimcher or LeMons with respect to the Snow Mountain lease, the FVE consulting agreement, or the leasing rights transfer contract, prior to the execution of those documents.   Plaintiffs testified they did not negotiate or discuss those matters with anybody from Glimcher.   All communications plaintiffs had concerning those documents were with Kevin exclusively.   Indeed, plaintiffs have still never met or spoken with Lee.

Although plaintiffs dealt exclusively with Kevin on these matters, neither Kevin nor Lee was ever employed by Glimcher or LeMons for any purpose.   Kevin received no payments from Glimcher.   Kevin never represented to anyone that he was employed by, or authorized to speak on behalf of, or for, or could sign any agreements on behalf of, Glimcher.

Kevin did not meet with LeMons or Glimcher about plaintiffs before execution of the Snow Mountain lease or the FVE consulting agreement.   The first time Kevin met LeMons was after this lawsuit was filed.

Likewise, Glimcher demonstrated an absence of evidence that Glimcher ratified Kevin's actions.   Glimcher never represented to plaintiffs that Kevin was employed by or authorized to speak for, or on behalf of, LeMons or Glimcher with respect to leasing space at Puente Hills Mall. No one at Glimcher ever told plaintiffs that Kevin worked for LeMons.   The first contact plaintiffs had with any one employed by Glimcher about Snow Mountain occurred in July 2008, the same month plaintiffs brought this action.

b. Plaintiffs' opposition

Plaintiffs opposed the summary judgment arguing that Glimcher was liable for the actions of LeMons and Lee on theories of joint venture liability, ostensible agency, and respondeat superior.   Plaintiffs argued that Glimcher “negligently allowed, and subsequently ratified,” LeMons' actions “to give the impression of his apparent authority to approve lease sites for a prospective tenant at the Puente Hills Mall[.]” Where LeMons was an employee, plaintiffs argued, Glimcher was liable for LeMons' conduct under the theory of respondeat superior.   In turn, LeMons allowed Lee “to give the impression of her ability to deliver a lease” to Kevin, who “represented himself to [plaintiffs] as a leasing broker[.]”

To demonstrate factual disputes about agency, plaintiffs relied on their and Kevin's declarations and deposition testimony indicating:  (1) Kevin told plaintiffs that he shared the leasing broker fee with Lee;  (2) Lee told Kevin she had a relationship with Glimcher and that part of the leasing broker fee was for someone who assisted with leasing at Puente Hills Mall;  (3) Kevin told plaintiffs part of the leasing fee would be paid to “the old man” who worked for Glimcher;  and (4) because plaintiffs were paying a leasing broker fee, they believed Kevin and the old man would protect their interests.

In reply to plaintiffs' opposition, Glimcher filed lengthy objections to the Kang-related declarations, i.e., those of Kim, Kang, Pachniak, and Feinberg, and to portions of Kaiser's declaration discussing LeMons' deposition in Kang.

The trial court granted Glimcher's summary judgment motion after sustaining most of Glimcher's evidentiary objections, and noting Kang was a separate case.   The court explained the only allegation of authority or ratification of conduct by LeMons or Kevin, and the only adequately alleged basis for holding Glimcher liable, was that Kevin held himself out as authorized to transact business for Glimcher.   The court noted there was no adequate allegation of joint venture.   Plaintiffs did not dispute that they never dealt with Glimcher concerning the lease, and all of their communications until the execution of the lease were exclusively with Kevin.   The court found that Glimcher presented sufficient evidence showing indisputably that there was no agency relationship between Glimcher and Kevin.   While Kevin led plaintiffs to believe that he was an agent for LeMons, there is no evidence that Glimcher said or did anything to plaintiffs to lead them to believe in any way that Kevin was acting on Glimcher's behalf.   Kevin's vague statements that he was giving the so-called leasing broker fee to Lee and other references that Lee knew LeMons, did not constitute evidence that Kevin actually was an agent for Glimcher or that Glimcher did or said anything to cloak Kevin with ostensible agency.   Plaintiffs filed their timely appeal.

CONTENTIONS

Plaintiffs contend (1) the trial court erred in sustaining Glimcher's objections to plaintiffs' Kang evidence;  and (2) respondeat superior is an independent basis for holding Glimcher liable for LeMons' wrongdoing.

DISCUSSION

1. Standard of review

“Summary judgment is granted when a moving party establishes the absence of a triable issue of material fact and the right to entry of judgment as a matter of law.  [Citations.]  ‘ “ ‘ “We review the [trial] court's decision to grant ․ summary judgment de novo.”  [Citation.]’  [Citation.]”   [Citation.]'  “ (Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1348–1349, citing Code Civ. Proc., § 437c, subd. (c) & Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “In performing our de novo review, we view the evidence in the light most favorable to plaintiffs,” “liberally constru[ing]” plaintiff's evidence and “strictly scruitiniz[ing]” that of Glimcher “in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor.  [Citation.]”  (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)   If there is no dispute as to the operative facts, the question is purely a legal one for us to resolve.  (Pacific Shore Funding v. Lozo, supra, at p. 1349.)

As for the trial court's rulings on evidentiary objections, the weight of authority holds that the standard of review is abuse of discretion.4  (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.)

2. Plaintiffs have not demonstrated error with respect to the trial court's evidentiary rulings as the references to the Kang case are irrelevant.

The main focus of plaintiffs' appellate brief is on their challenge to the trial court's evidentiary rulings.   Plaintiffs contend that the court erred in sustaining Glimcher's objections to the declarations discussing Kang. Plaintiffs reason that Kang concerns “an essentially identical pattern of conduct as the present case,” but with additional involvement of Kevin in this action.   Plaintiffs contend, if the court had considered all of the evidence from Kang, that it would have found triable factual issues about Glimcher's liability in this case.   We are at pains to understand how that might be.

The trial court properly sustained Glimcher's relevancy objections to the Kim, Kang, and Pachniak declarations in their entirety.  (Evid.Code, § 210.)   The Pachniak, Kang, and Kim declarations discuss the events in Kang only and make no mention of this case or plaintiffs' business.   Moreover, Kang and this lawsuit are factually unrelated.   Kang and Kim were actually lessees at Puente Hills Mall of a restaurant that was not Snow Mountain.   Plaintiffs are neither lessees nor authorized tenants.   There is no evidence that Kevin, the sole person with whom plaintiffs dealt to obtain a lease at Puente Hills Mall, was involved in Kang at all.   The allegations of wrongdoing by LeMons and Lee in Kang all relate to the Kang plaintiffs and their lease, and not plaintiffs or the Snow Mountain lease.   Indeed, Pachniak, Kim, and Kang did not claim to have knowledge of, or any relationship whatsoever with, plaintiffs or the circumstances of this case.

Simply put, the Kang, Kim, and Pachniak declarations are irrelevant.   Plaintiffs offer these three declarations to show, if Glimcher knew of and ratified LeMons' and Lee's scheme to cheat the Kangs, that Glimcher necessarily ratified Kevin's scheme to cheat plaintiffs here.  (Civ.Code, §§ 2307 & 2310.)  “ ‘Relevant evidence’ means evidence ․ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”  (Evid.Code, § 210.)  “ ‘It is a fundamental rule of evidence that you cannot prove the commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances.   Such evidence is simply not relevant ․’  [Citations.]”   (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 851, italics added.)   Thus, the trial court properly excluded the Kang, Kim, and Pachniak declarations in their entirety as irrelevant.

For the same reason that the three Kang-related declarations are irrelevant to this action, the excerpts of LeMons' deposition taken in Kang, in which he discussed events in that case, are irrelevant (Brokopp v. Ford Motor Co., supra, 71 Cal.App.3d at p. 851), notwithstanding plaintiffs' claim to the contrary.   Additionally, plaintiffs attempted to authenticate this deposition through the declaration of their attorney, Raymond T. Kaiser, who summarized LeMons' deposition testimony in his own words.5  The trial court properly sustained Glimcher's objections to those portions of Kaiser's declaration on the grounds of relevance, hearsay, and best evidence.  (Evid.Code, §§ 210, 1200, 1520.)

Likewise, the trial court properly excluded portions of Feinberg's declaration.   Plaintiffs argue that Feinberg properly testified about the nature of the fraudulent scheme.  (People v. Singh (1995) 37 Cal.App.4th 1343, 1378.)   Feinberg stated that based on his review of declarations and deposition testimony in both Kang and this action, “it is my opinion that there is evidence to support the allegations of Krista Pachniak ․“ in Kang. He further declared, “If 1) the declarations of [ ] Kang, [ ] Kim, [and plaintiffs] are to be believed, 2) as well as David LeMon[s'] testimony ․ 3) as well as Kevin Yoon's testimony ․ then defendant David LeMons ․ was engaged in an improper business arrangement with defendant Grace Lee․”

Feinberg's declaration is inadmissible because the evidence upon which Feinberg relied to form his opinions is, as noted, irrelevant in this case and hence inadmissible.   Thus, the basis for Feinberg's opinion is unsound as it relates to this case.  (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 [“An expert opinion has no value if its basis is unsound.”], citing Evid.Code, § 801.)

Nor do plaintiffs attempt on appeal to demonstrate how Feinberg could properly form an opinion about this case based on the Kang, Kim, and Pachniak declarations and LeMons deposition in Kang. Rather, plaintiffs' argument assumes that the declarations and deposition testimony forming the basis of Feinberg's opinion are competent evidence and could reasonably be relied on.   They argue in their appellate brief:  “[a]n expert may testify on the nature of a fraudulent scheme,” and “Feinberg's opinions, based on competent evidence reasonably relied upon, create triable issues of fact in this case ․”  (Italics added.)   Such argument does not explain why Feinberg could rely on declarations that are irrelevant in this case, and hence incompetent, to form an opinion about this case.  People v. Singh, supra, 37 Cal.App.4th 1343, does not aid plaintiffs.   The issue in Singh was whether witnesses were qualified to testify as experts under Evidence Code section 801, subdivision (a).  (People v. Singh, supra, at pp. 1377–1378.)  Singh never addressed the question of whether the opinions of experts were based on competent evidence in the first place, as is required by subdivision (b) of section 801 of the Evidence Code.6

With these Kang-related declarations, plaintiffs are attempting to bootstrap statements about an entirely different case to establish that if Glimcher ratified LeMons' and Lee's conduct with respect to the Kangs, it necessarily ratified Kevin's conduct with respect to plaintiffs.   To state plaintiffs' argument is to demonstrate its absurdity.   Plaintiffs are comparing apples and oranges because Kevin, the sole person with whom plaintiffs dealt in this case, is not alleged to have been involved in Kang at all.

Actual agency occurs “when the agent is really employed by the principal.”   (Civ.Code, § 2299; 7  Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 302 (Pagarigan ).)   Ostensible agency arises from the conduct of the principal, not the agent.  (Pagarigan, supra, at pp. 301–302;  Civ.Code, § 2300.8 )  There is nothing in the Kang-related declarations that creates an issue of fact about agency in this case because none of the testimony from Kang addresses, let alone disputes, Glimcher's facts that:  (1) plaintiffs dealt only with Kevin and FVE, who were never employed by Glimcher (Civ.Code, § 2299) and were expressly not partners or joint venturers with each other, and (2) Glimcher did not do or say anything to plaintiffs to cause plaintiffs to believe that Kevin or FVE had authority to act on behalf of Glimcher with respect to the Snow Mountain lease (Civ.Code, § 2300), because plaintiffs had no contact with anyone connected with Glimcher, including LeMons, before bringing this lawsuit.

Although Kevin may have led plaintiffs to believe he or Lee had authority to represent Glimcher, that is simply not enough to dispute that Glimcher did not cause plaintiffs to believe it was Kevin's principal.  “A person cannot become the agent of another merely by representing herself as such.   To be an agent she must actually be so employed by the principal or ‘the principal intentionally, or by want of ordinary care, [has caused] a third person to believe another to be his agent who is not really employed by him.’   “ (Pagarigan, supra, 99 Cal.App.4th at pp. 301–302, first italics added, fns. omitted.)   No amount of facts about agency in Kang is relevant to Glimcher's conduct in this case, and so the Kang documents were properly excluded.

3. There is no evidence establishing Glimcher's liability under the doctrine of respondeat superior.

Turning to the substantive issues here, we “review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.  [Citation.]”  (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

As their sole substantive contention on appeal, plaintiffs argue that “the doctrine of respondeat superior is an independent basis for establishing liability against [Glimcher for LeMons'] wrongdoing and creates a triable issue of fact.”  (Capitalization omitted.)   Plaintiffs argue that Glimcher acknowledged that LeMons was an employee.   But merely acknowledging LeMons as an employee is not enough to hold Glimcher liable under the theory of vicarious liability.

“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment.”   (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.)   Here, however, while it is true that LeMons was employed by Glimcher between 2006 and 2009, based on the admissible evidence, plaintiffs failed to dispute that LeMons took no action that damaged plaintiffs.   Plaintiffs argue that LeMons knowingly dealt with Kevin and Lee. Yet, the only evidence linking LeMons to plaintiffs is that Kevin told plaintiffs that “the old man”—for whom they wrote the $10,000 check out to Kevin—was LeMons.   But, plaintiffs learned later that “the old man” was actually Lee. Otherwise, plaintiffs do not dispute they had no contact with LeMons before signing the FVE consulting agreement, and no one at Glimcher ever told plaintiffs that Kevin worked for LeMons.   As explained, ante, “A person cannot become the agent of another merely by representing herself as such.”  (Pagarigan, supra, 99 Cal.App.4th at p. 301, italics added.)   Even if Kevin's statements showed that he represented himself as working for LeMons, that does not make him an agent, and does not bind LeMons as the principal.  (Ibid.)

Plaintiffs cite Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, which they claim has striking similarities to this case.   Inter Mountain Mortgage, Inc. does not aid plaintiffs.   Unlike here, in Inter Mountain Mortgage, Inc., “there was evidence raising a triable issue, if not establishing, that [the employee] engaged in the alleged fraudulent loan transaction.”  (Id. at p. 1441.)   Here, plaintiffs have presented no evidence, let alone evidence that might raise a triable factual issue, that its employee, LeMons, engaged in any acts vis á vis plaintiffs.   The only evidence presented involves Kevin, but there is no evidence linking Kevin to LeMons, let alone to Glimcher.

4. Plaintiffs forfeited the contention the trial court erred in granting summary judgment of their substantive causes of action based on a joint venture.

Plaintiffs also sought to hold Glimcher liable for the conduct of Kevin and Lee as a joint venturers.   However, on appeal, plaintiffs' brief does not present argument to challenge the trial court's rulings as to this theory of liability.   Accordingly, they have forfeited that contention on appeal.   (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)

DISPOSITION

The judgment is affirmed.   Appellants to pay costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Kevin's parents are Yong S. Yoon and Soo Ok Chung.   For clarity, we refer to Kevin by his first name and mean no disrespect thereby.   Kevin, his parents, and their business, Future Vision Enterprises Inc., all named as defendants, are not parties to this appeal..  FN1. Kevin's parents are Yong S. Yoon and Soo Ok Chung.   For clarity, we refer to Kevin by his first name and mean no disrespect thereby.   Kevin, his parents, and their business, Future Vision Enterprises Inc., all named as defendants, are not parties to this appeal.

FN2. There is also testimony that Kevin asked plaintiffs to pay a total leasing broker fee of $45,000.   Kevin explained to plaintiffs that this $45,000 was, in part, for “ ‘an old man’ at the Puente Hills Mall property” who worked for Glimcher and could handle all of the leasing issues in California..  FN2. There is also testimony that Kevin asked plaintiffs to pay a total leasing broker fee of $45,000.   Kevin explained to plaintiffs that this $45,000 was, in part, for “ ‘an old man’ at the Puente Hills Mall property” who worked for Glimcher and could handle all of the leasing issues in California.

FN3. Grace Lee has never appeared and had not been defaulted at the time Glimcher moved for summary judgment.   Lee is not a party to this appeal..  FN3. Grace Lee has never appeared and had not been defaulted at the time Glimcher moved for summary judgment.   Lee is not a party to this appeal.

FN4. If the trial court does not rule at all on evidentiary objections, we review de novo objections raised on appeal.  (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.).  FN4. If the trial court does not rule at all on evidentiary objections, we review de novo objections raised on appeal.  (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)

FN5. For example, Kaiser declared, “On page 7:18–8:2, David LeMons testified that he was employed as the regional leasing director for the Glimcher Realty Trust from January 31, 2006, through January 12, 2009.”   “On page 33:17–34:12, David LeMons from time to time, expressed an opinion to his superior whether or not a prospective tenant should be given a lease at the Puente Hills Mall.”.  FN5. For example, Kaiser declared, “On page 7:18–8:2, David LeMons testified that he was employed as the regional leasing director for the Glimcher Realty Trust from January 31, 2006, through January 12, 2009.”   “On page 33:17–34:12, David LeMons from time to time, expressed an opinion to his superior whether or not a prospective tenant should be given a lease at the Puente Hills Mall.”

FN6. Evidence Code section 801 reads, “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”.  FN6. Evidence Code section 801 reads, “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

FN7. Civil Code section 2299 reads:  “An agency is actual when the agent is really employed by the principal.”.  FN7. Civil Code section 2299 reads:  “An agency is actual when the agent is really employed by the principal.”

FN8. Civil Code section 2300 reads:  “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.”.  FN8. Civil Code section 2300 reads:  “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.”

KLEIN, P. J. KITCHING, J.